Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER

. Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,

303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email

corrections@akcourts.gov.

THE SUPREME COURT OF THE STATE OF ALASKA

WILLIAMS ALASKA PETROLEUM,

INC. and THE WILLIAMS

COMPANIES, INC.,

Appellants,

v.

STATE OF ALASKA; FLINT HILLS

RESOURCES, LLC; and FLINT HILLS

RESOURCES ALASKA, LLC,

Appellees. )

)

)

)

)

)

)

)

)

)

)

)

)

) S upreme Court No. S-17772

uperior Court No. 4FA-14-01544 CI

P I N I O N

o. 7658

– May 26, 2023 S

O

N

Appeal from the Superior Court of the State of Alaska,

Fourth Judicial District, Fairbanks, Warren W. Matthews,

Judge pro tem.

Appearances: David H. Shoup, Tindall Bennett & Shoup,

P.C., Anchorage, and Tristan L. Duncan and Mathew L.

Larsen, Shook, Hardy & Bacon L.L.P., Kansas City,

Missouri, for Appellants. Laura Fox and Steven E. Mulder,

Assistant Attorneys General, Anchorage, and Treg R. Taylor,

Attorney General, Juneau, for Appellee State of Alaska.

James N. Leik, Perkins Coie LLP, Anchorage, and Jan M.

Conlin and Mathew R. Korte, Ciresi Conlin LLP,

Minneapolis, Minnesota, for Appellees Flint Hills Resources,

LLC and Flint Hills Resources Alaska, LLC.

Before: Winfree, Chief Justice, Maassen, Carney,Henderson, Justices, and Eastaugh, Senior Justice. *

[Borghesan, Justice, not participating.]

CARNEY, Justice.

I.	 INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

II.	 BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

A.	 Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

B.	 Statutory Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

C.	 Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

III.	 STANDARDS OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

IV.	 DISCUSSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

A.	 State’s Statutory Claims Against Williams. . . . . . . . . . . . . . . . . . . . . . 17

1.	 The superior court did not err when it concluded that sulfolane is a

hazardous substance under AS 46.03.826(5). . . . . . . . . . . . . . . 17

2.	 The superior court did not err by awarding response costs to the

State and Flint Hills.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

3.	 The superior court did not err by awarding damages for loss of

access to groundwater due to sulfolane contamination.. . . . . . . 38

4.	 It was error to issue injunctive relief by reference to supporting

documents, but the superior court did not err by granting declaratory

relief.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

a.	 Challenges to the injunctive relief. . . . . . . . . . . . . . . . . . 50

b.	 Challenges to the declaratory relief. . . . . . . . . . . . . . . . . 53

5.	 Williams’s right to due process was not violated. . . . . . . . . . . . 56

6.	 Imposing civil liability for past releases was not an unconstitutional

taking. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

B.	 Flint Hills’s Contractual Indemnification And Statutory Contribution

Claims Against Williams . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

1.	 Overview of the Purchase Agreement’s indemnification and

remedies provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

* Sitting by assignment made under article IV, section 11 of the Alaska

Constitution and Alaska Administrative Rule 23(a).

-2- 76582.	 The superior court did not erroneously conclude that the Purchase

Agreement limited Flint Hills’s liability. . . . . . . . . . . . . . . . . . . 69

3. The superior court did not err by concluding Williams retained

responsibility for offsite sulfolane.. . . . . . . . . . . . . . . . . . . . . . . 71

4.	 The superior court did not err by concluding that Flint Hills could

pursue contribution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

5.	 The superior court’s contribution allocations were not erroneous.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82

a.	 The court did not err by allocating statutory contribution for

offsite sulfolane to Williams.. . . . . . . . . . . . . . . . . . . . . . 83

b.	 The superior court adequately considered DEC’s earlier non- regulation of sulfolane when it allocated damages. . . . . 83

c.	 The superior court did not penalize Williams for “defending

itself.”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

d.	 The superior court did not err by not allocating responsibility

to the State or by ignoring Williams’s equitable defenses.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86

e.	 The superior court did not err by failing to allocate

responsibility to the City of North Pole. . . . . . . . . . . . . . 89

VI.	 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

I.	 INTRODUCTION

Following the release of hazardous substances that contaminated local

groundwater, the State and the previous and current owners of a refinery litigated

contract and statutory claims for damages, contribution, and injunctive relief under

Alaska’s environmental conservation statutes. The superior court rejected the previous

owner’s claims against the State and the current owner, found the previous owner

strictly liable, and ordered it to pay damages to the State and make contribution to the

current owner for its remediation costs. The court also issued injunctions requiring the

previous owner to perform and pay for various ongoing remediation and cleanup efforts.

The previous owner appeals many of the superior court’s findings of fact and

-3

- 7658conclusions of law. The previous owner contends that the superior court erred by

concluding the substance at issue was hazardous, awarding response costs to the State

and the current owner, awarding damages for loss of groundwater access, issuing

improper injunctive and declaratory relief, interpreting the purchase contract between the

former and current owners to hold the former owner responsible for the substances

released, and improperly allocating damages. The previous owner also contends that the

decision violated its right to due process and was an unconstitutional taking. We affirm

the superior court’s decision except that we remand the grant of injunctive relief for more

specificity as required by rule.

II. BACKGROUND

A. Facts

Williams Alaska Petroleum, Inc. and The Williams Companies, Inc.

(collectively Williams) owned and operated a North Pole refinery beginning in 1977.

The refinery is on State-owned land which Williams leased. Williams began using

sulfolane as a purifying solvent in its refining process in 1985. Sulfolane is highly

soluble in water, meaning it can easily seep into groundwater when released onto the

ground and into waterways, and it has low volatility, meaning it will not readily

evaporate and instead remains in groundwater without attaching to the soil.

Williams allowed sulfolane to migrate into the groundwater at the refinery

through various means. Sulfolane was recycled to the extent feasible, but due to its high

solubility some remained dissolved in water from refinery processes and was diverted

into the wastewater system. Due to poor upkeep

— with documented foot-wide tears in

wastewater lagoon linings and some holes “repaired” by “pulling [the] liner together and

punching with

. . . pieces of lumber”

— several wastewater storage units leaked sulfolane

into the soil and groundwater. There were also direct sulfolane spills. Williams had

multiple accidental releases of sulfolane-containing solutions, resulting in the release of

-4

- 7658hundreds of gallons of solution with sulfolane concentrations ranging from 66% to

100%.

Sulfolane was detected in groundwater at the refinery in 1996 when

Williams’s lab manager found sulfolane in groundwater samples in concentrations

ranging from 250,000-2,700,000 parts per billion (ppb). Williams did not report its 1996

detection of sulfolane in groundwater to the Alaska Department of Environmental

Conservation (DEC) until five years later in October 2001, when Williams’s consultant

Shannon & Wilson prepared a report for Williams’s 2002 Site Characterization and

Corrective Action Plan to address earlier environmental concerns about the refinery. By

2001 sulfolane was generally known in the scientific community to “exhibit[] low levels

of toxicity,” but there otherwise was a dearth of available information about sulfolane,

and DEC did not regulate it as a hazardous substance. DEC advised Williams about this

uncertainty regarding sulfolane’s toxicity and cautioned Williams about sulfolane’s high

mobility in groundwater. DEC instructed Williams to continue sampling the

groundwater until it found the contamination source. DEC informed Williams it could

reduce sampling frequency if its data were not changing and it could not find a source.

Williams was not able to determine the specific source and stopped sampling altogether

in July 2002.

Williams also used aqueous foams as part of its fire response practices.

These foams at the time contained per- and polyfluoralkyl substances, commonly called

“PFAS.” 1 The PFAS in the foams included a wide range of synthetic chemicals; among

1 See 4 L AWRENCE G. C ETRULO

, T OXIC T ORTS L ITIGATION G UIDE § 48:1

(2022-23 ed.) (“Per- and polyfluoroalkyl s ubstances (PFAS) is a general t erm used to

describe a group of over 5,000 different synthetic chemicals that are used in industrial

and commercial applications throughout the world, most commonly to repel water and

oil, to combat high temperatures, and to reduce the effects of friction.”).

-5

- 7658the chemicals were perfluorooctanesulfonic acid (PFOS) and perfluorooctanoic acid

(PFOA). 2 Testing of the groundwater and soil at the refinery shows that, at the time of

trial, they contained several PFAS, including PFOA and PFOS.

On March 31, 2004 Williams sold the refinery to Flint Hills Resources,

LLC and Flint Hills Resources Alaska, LLC (collectively Flint Hills). The parties to the

sale signed an Asset Sale and Purchase Agreement they agreed would be governed by

Texas law. It contained detailed provisions about the assumption or retention of

liabilities related to all aspects of the refinery’s operations, including environmental

liabilities. The parties agreed to hold harmless and indemnify each other for costs arising

from their respective retained liabilities. Williams agreed to retain most environmental

liabilities arising from its operations at the refinery, excepting specific matters listed on

a Disclosure Schedule.

In an effort to ensure more certainty about future indemnification

obligations, the parties included a limit on indemnifiable damages with a specific

Environmental Cap of $32 million. They further agreed that for claims “arising out of”

the Purchase Agreement, the remedies listed in the Purchase Agreement would be

exclusive, with certain exceptions including claims for equitable relief. Williams agreed

to purchase a $50 million environmental liability insurance policy and paid $2.4 million

in premiums.

The Purchase Agreement also specified that Flint Hills was responsible for

future sulfolane releases at the refinery beginning April 1, 2004. DEC informed Flint

2 Because the ingredients in the foam were proprietary information, the exact

compounds contained in the foams were not known at the time. An expert witness

testified at trial that, based on safety information provided by the manufacturer, the

PFAS presumably included PFOA. Williams admitted the foams contained PFAS and

PFOS, but stated it did not know whether they contained PFOA.

-6

- 7658Hills in October 2004 that it considered sulfolane a regulated contaminant and would be

adopting cleanup standards.

By April 2019 the sulfolane in the groundwater had laterally travelled,

creating a plume approximately two miles wide, three and a half miles long, and over

three hundred feet deep, and spreading offsite from the refinery. The plume then

extended into the City of North Pole’s groundwater, and it is expected that sulfolane will

continue to flow from the refinery site. Flint Hills and the State have taken a variety of

steps to mitigate damages from the groundwater sulfolane plume, including providing

alternative interim water, well-testing, community outreach, and drafting site

characterization and corrective action plans. The most significant step has been

expanding the City’s piped water system.

B. Statutory Background

The legislature passed the Environmental Conservation Act 3 to “conserve,

improve, and protect [Alaska’s] natural resources and environment and control

. . .

pollution, in order to enhance the health, safety, and welfare of the people of the state.” 4

The statutes empower a court to issue injunctions and impose damages on violators. 5

Alaska Statute 46.03.710 prohibits polluting or adding “to the pollution of

the air, land, subsurface land, or water of the state.” 6 Alaska Statute 46.03.760 authorizes

civil damages 7 for violation of the Act or a DEC regulation, order, or permit. The State’s

3 AS 46.03.010-.900.

4 AS 46.03.010 (declaring policy).

5 AS 46.03.765.

6 AS 46.03.710.

7 “Damages include but are not limited to injury to or loss of persons or

(continued...)

-7

- 7658available damages for a violation of the Act are limited to “$100,000 for the initial

violation” and “$5,000 for each day after that on which the violation continues.” 8

Subsection .760(a) also provides that the assessments

shall reflect, when applicable,

(1) reasonable compensation in the nature of liquidated

damages for any adverse environmental effects caused by the

violation, which shall be determined by the court according

to the toxicity, degradability, and dispersal characteristics of

the substance discharged, the sensitivity of the receiving

environment, and the degree to which the discharge degrades

existing environmental quality;

(2) reasonable costs incurred by the state in detection,

investigation, and attempted correction of the violation;

(3) the economic savings realized by the person in not

complying with the requirement for which a violation is

charged.

In addition to the damages allowed by subsection .760(a), subsection

.760(d) allows uncapped liability in cases of oil pollution or releases of hazardous

substances for actual damages caused to the state by a violation of AS 46.03.740-.750, 9

7 (...continued)

property, real or personal, loss of income, loss of the means of producing income, or the

loss of an economic benefit.” AS 46.03.824.

8 AS 46.03.760(a).

9 AS 46.03.740 (prohibiting the discharge of “petroleum, acid, coal or oil tar,

lampblack, aniline, asphalt, bitumen, or a residuary product of petroleum, into, or upon

the waters or land of the state” except as permitted). Alaska Statute 46.03.745 prohibits

the uncontrolled release of a “hazardous substance as defined in AS 46.09.900.” Alaska

Statute 46.09.900(4) defines “hazardous substance” as

(A) an element or compound that, when it enters i nto or on

(continued...)

-8

- 7658including “(1) direct and indirect costs associated with the abatement, containment, or

removal of the pollutant; (2) restoration of the environment to its former state; (3)

amounts paid as grants

. . . and (4) all incidental administrative costs.” 10 The statute

cautions that “actions under this section may not be used for punitive purposes, and sums

assessed by the court must be compensatory and remedial in nature.” 11 Section .780

provides that if a violation “causes the death of fish, animals, or vegetation or otherwise

injures or degrades the environment of the state,” the violator may be additionally liable

up to the “amount equal to the sum of money required to

. . . replenish a damaged or

degraded resource, or to otherwise restore the environment of the state to its condition

before the injury.” 12

To recover uncapped actual damages for a violation under AS 46.03.760(d),

the State must bring a civil action under AS 46.03.822, which provides for strict liability

for the release of hazardous substances. 13 Subsection .822(a) holds persons strictly liable

9 (...continued)

the surface or subsurface land or water of the state, presents

an imminent and substantial danger to the public health or

welfare, or to fish, animals, vegetation, or any part of the

natural habitat in which fish, animals, or wildlife may be

found; or (B) a substance defined as a hazardous substance

under 42 U.S.C. 9601

- 9657 (Comprehensive Environmental

Response, Compensation, and Liability Act of 1980)

[CERCLA]; “hazardous substance” does not include

uncontaminated crude oil or uncontaminated refined oil

. . . .

10 AS 46.03.760(d).

11 AS 46.03.760(b).

12 AS 46.03.780.

13 See AS 46.03.760(d) and AS 46.03.822.

-9

- 7658if they owned or had control over the hazardous substance at the time of release, or

owned or operated the facility where the hazardous substance was released or disposed. 14

For the State to recover damages under subsection .822(a), it must demonstrate that the

released substance is a “hazardous substance” as defined by AS 46.03.826(5):

(A) an element or compound which, when it enters into the

atmosphere or in or upon the water or surface or subsurface

land of the state, presents an imminent and substantial danger

to the public health or welfare, including but not limited to

fish, animals, vegetation, or any part of the natural habitat in

which they are found;

(B) oil; or

(C) a substance defined as a hazardous substance under

42 U.S.C. 9601(14). [ 15 ]

14 AS 46.03.822(a)(1)-(3).

15 42 U.S.C. 9601(14) defines “hazardous substance” under CERCLA as

(A) any substance designated pursuant to section

311(b)(2)(A) of the Federal Water Pollution Control Act [33

U.S.C. 1321(b)(2)(A)], (B) any element, compound, mixture,

solution, or substance designated pursuant to section 9602 of

this title, (C) any hazardous waste having the characteristics

identified under or listed pursuant to section 3001 of the

Solid Waste Disposal Act [42 U.S.C. 6921] (but not

including any waste the regulation of which under the Solid

Waste Disposal Act [42 U.S.C. 6901 et seq.] has been

suspended by Act of Congress), (D) any toxic pollutant listed

under section 307(a) of the Federal Water Pollution Control

Act [33 U.S.C. 1317(a)], (E) any hazardous air pollutant

listed under section 112 of the Clean Air Act [42 U.S.C.

7412], and (F) any imminently hazardous chemical substance

or mixture with respect to which the Administrator has taken

action pursuant to section 7 of the Toxic Substances Control

Act [15 U.S.C. 2606]. The term does not include petroleum,

(continued...)

-1 0- 7658In addition to allowing the State to recover uncapped actual damages, AS 46.03.822

holds persons “strictly liable, jointly and severally, for damages, for the costs of

response, containment, removal, or remedial action incurred by the state, a municipality,

or a village, and for the additional costs of a function or service, including administrative

expenses for the incremental costs of providing the function or service.” 16

The statute explicitly holds ineffective any “indemnification, hold harmless,

or similar agreement

. . . to transfer liability

. . . from the owner or operator of a

facility.” 17 However, the statute allows for indemnification and hold harmless

agreements between liable parties to shift financial responsibility. 18 Once liability is

determined by the court, parties “may seek contribution from any other person who is

liable under (a) of this section.” 19 To resolve a claim for contribution, “the court may

allocate damages and costs among liable parties using equitable factors determined to be

appropriate by the court.” 20

C.	 Proceedings

In March 2014 the State sued Williams and Flint Hills seeking declaratory

15 (...continued)

. . . natural gas,

. . . or synthetic gas usable for fuel (or

mixtures of natural gas and such synthetic gas).

16 AS 46.03.822(a). Subsection .822(b) which relieves persons from liability

if certain narrow conditions arise, is inapplicable. See AS 46.03.822(b) (releasing

liability if the release occurred solely because of an act of war; “an intentional or negligent act or omission of a third party”; or an “act of God”).

17 AS 46.03.822(g).

18 Id.

19 AS 46.03.822(j).

20 Id.

-1 1- 7658relief, injunctive relief, and damages resulting from discharges of oil and sulfolane. The

State alleged that sulfolane is a hazardous substance as defined by Alaska’s

environmental conservation statutes and administrative code. In its a nswer, Williams

denied that i ts sulfolane releases w ere unlawful; asserted various l egal, equitable, and

constitutional defenses; and made counterclaims against the State. Williams claimed the

State was a responsible landowner under AS 46.03.822(a) and could not “transfer its

liability” to Williams because it had not regulated sulfolane during Williams’s tenure at

the refinery. Williams also claimed that D EC was o rdinarily and grossly negligent in

supervising the refinery during Flint Hills’s tenure, allowing sulfolane to migrate off the

refinery property, which in turn resulted in damages to Williams that it should be able

to recover in contribution under AS 46.03.822(j).

Flint Hills similarly denied liability under the Act and asserted legal,

equitable, procedural, and constitutional defenses in its answer. Flint Hills claimed the

State and Williams were responsible parties under AS 46.03.822(a), and Flint Hills

counterclaimed against the State for contribution under AS 46.03.822(j). It also

crossclaimed against Williams seeking contribution under AS 46.03.822(j) and

indemnification under the terms of the Purchase Agreement, specific performance of the

Purchase Agreement, and declaratory judgment regarding Flint Hills’s right to

contribution and indemnification from Williams. Williams in turn asserted crossclaims

against Flint Hills, claiming that Flint Hills had breached the Purchase Agreement, was

unjustly enriched by improperly seeking coverage from Williams’s environmental

insurance policy, and was ordinarily and grossly negligent in allowing sulfolane

contamination. Williams sought damages for breach of contract, declaratory judgment

that it was entitled to indemnification under the Purchase Agreement, contribution under

AS 46.03.822(j), and application of the Purchase Agreement’s Environmental Cap to any

potential liability against Williams.

-1 2- 7658The City of North Pole also filed suit that year. Its case and a case brought

by a North Pole resident against Williams and Flint Hills in 2010 were consolidated with

the State’s suit. After PFAS contamination was discovered at the site, the State and Flint

Hills filed additional claims against Williams.

In 2016 we ruled in Flint Hills Resources Alaska, LLC v. Williams Alaska

Petroleum, Inc. ( Flint Hills I ) that Flint Hills’s claims against Williams for contractual

indemnification and statutory contribution under AS 46.03.822(j) were time-barred with

respect to onsite sulfolane contamination, but not offsite sulfolane contamination. 21 We

also determined that because Flint Hills’s claims against Williams for declaratory and

injunctive relief were “equitable remedies

. . . identical to the legal remedies Flint Hills

sought in its statutory and contractual claims,” 22 it had not been error for the superior

court to dismiss the equitable claims. 23

In February 2017 Flint Hills reached a settlement with the State and the

City, agreeing to partially fund an extension of piped water to affected residents. The

superior court accordingly dismissed with prejudice the State’s and Flint Hills’s claims

against each other.

The State and Flint Hills added claims against Williams for offsite PFAS

soon after it was discovered in late 2018, but because discovery deadlines had passed the

21 377 P.3d 959, 973 (Alaska 2016).

22 Id. at 974 (“Flint Hills sought a judgment from the court declaring that

Williams must indemnify Flint Hills under the [Purchase] Agreement and that Williams

‘is obligated to contribute to Flint Hills all [s]tatutory [d]amages that have resulted

. . . from the [c]ontamination.’ Flint Hills also sought an order requiring Williams to perform

under the terms of the [Purchase] Agreement.” (lowercase alterations in original)).

23 See Knaebel v. Heiner

, 663 P.2d 551, 553 (Alaska 1983) (“One who seeks

the interposition of equity must generally show that he either has no remedy at law or

that no legal remedy is adequate.”).

-1 3- 7658parties agreed the court would refer the offsite PFAS claims to DEC under the doctrine

of primary jurisdiction. 24 Williams moved to defer onsite PFAS issues to DEC under the

same doctrine, but the superior court denied the motion, finding it was “primarily made

for purposes of delay” and would not facilitate the “orderly and reasonable coordination

of the work of agencies and courts” after “five years of active litigation.”

In June 2019 the superior court deconsolidated the State’s and the City’s

cases against Williams.

The State’s case against Williams proceeded to a bench trial. Over 16 days

each side called lay and expert witnesses a nd admitted thousands of pages of exhibits

into evidence. 25 The court issued a lengthy memorandum decision and final judgment,

concluding that sulfolane is a hazardous substance and that Williams is strictly, jointly,

and severally liable for its sulfolane release as well as for onsite PFAS and oil releases.

The court allocated 75% responsibility for offsite sulfolane costs to Williams and ordered

it to pay damages for that portion of the State’s response and oversight costs, as well as

for natural resource damages caused by the loss of the public’s access to groundwater

due to sulfolane contamination. The court held Williams responsible for 75% of future

State costs related to the piped water system and held further that the State could recover

from Williams that portion of “DEC’s future oversight costs.” The court a dditionally

ordered Williams to abide by Alaska statutes and DEC regulations related to monitoring,

reporting, and cleanup of offsite sulfolane and onsite PFAS. The court found that Flint

24 “Primary jurisdiction is a judicially created prudential doctrine that applies

‘to claims properly cognizable in court [but] that contain some issue within the special

competence of an administrative agency.’ ” Seybert v. Alsworth

, 367 P.3d 32, 39 (Alaska

2016) (alteration in original) (quoting Reiter v. Cooper

, 507 U.S. 258, 268 (1993)).

25 We discuss the relevant aspects of testimony and evidence presented when

addressing each point on appeal.

-1 4- 7658Hills was not responsible for PFAS contamination at the refinery.

The superior court then turned to Flint Hills’s claims against Williams to

recover costs for responding to the contamination. The court determined that Williams

had retained liability for offsite sulfolane existing on the date Flint Hills acquired the

refinery. The court found that, although Flint Hills could not recover its costs for

responding to the contamination through the Purchase Agreement’s indemnification

provisions, Flint Hills could obtain statutory contribution under AS 46.03.822(j). The

court granted Flint Hills recovery from Williams for its equitable share of past offsite

sulfolane response costs, as well as its share of future costs related to the piped water

system and other offsite sulfolane remediation costs. The court also ordered Williams

to indemnify, defend, hold harmless, and reimburse Flint Hills for all onsite PFASrelated future claims and costs. And the superior court dismissed all of Williams’s

claims against the State and Flint Hills.

Williams appeals, claiming the superior court erred on various points of fact

and law.

III. STANDARDS OF REVIEW

We review the superior court’s factual findings for clear error. 26 “Clear

error exists ‘when “after a thorough review of the record, we come to a definite and firm

conviction that a mistake has been made.” ’ ” 27 Questions of law, which include whether

the superior court applied the correct legal standard, are reviewed de novo. 28

“We review a superior court’s evidentiary rulings for abuse of discretion,”

26 Burton v. Fountainhead Dev., Inc.

, 393 P.3d 387, 392 (Alaska 2017).

27 Id. (quoting Laybourn v. City of Wasilla

, 362 P.3d 447, 453 (Alaska 2015)

(quoting 3-D & Co. v. Tew’s Excavating, Inc.

, 258 P.3d 819, 824 (Alaska 2011))).

28 Janes v. Alaska Railbelt Marine, LLC

, 309 P.3d 867, 875 (Alaska 2013).

-1 5- 7658reversing only “evidentiary rulings that are both erroneous and prejudicial.” 29 Under this

standard, we ask “whether the reasons for the exercise of discretion are clearly untenable

or unreasonable.” 30 We also apply the abuse of discretion standard when we review

grants or denials of injunctive relief 31 and decisions to “stay or dismiss a claim” under

the primary jurisdiction doctrine. 32

“The superior court’s decision to allocate and apply contribution to a

damage award involves the interpretation and application of a statute.” 33 We apply our

independent judgment to questions of law, including “the interpretation and application

of a statute,” as well as “[w]hether the superior court applied an incorrect legal

standard.” 34 “We interpret statutes ‘according to reason, practicality, and common sense,

taking into account the plain meaning and purpose of the law as well as the intent of the

drafters.’ ” 35

29 Id.

30 Burke v. Maka

, 296 P.3d 976, 979-80 (Alaska 2013).

31 Lee v. Konrad

, 337 P.3d 510, 517-18 (Alaska 2014); see also State v.

Galvin

, 491 P.3d 325, 332 (Alaska 2021) (explaining that reviewing an order for

injunctive relief often also involves reviewing conclusions of law and findings of fact).

32 Seybert v. Alsworth , 367 P.3d 32, 36 (Alaska 2016); see also Matanuska

Elec. Ass’n v. Chugach Elec. Ass’n , 99 P.3d 553, 559 (Alaska 2004) (recognizing that

“primary agency jurisdiction doctrine is one of prudence, and not an absolute

jurisdictional limitation”).

33 Oakly Enters., LLC v. NPI, LLC

, 354 P.3d 1073, 1078 (Alaska 2015); see

AS 46.03.822(j).

34 Oakly Enters., LLC

, 354 P.3d at 1078 (quoting Guttchen v. Gabriel

, 49 P.3d

223, 225 (Alaska 2002)).

35 Id. (quoting Native Vill. of Elim v. State

, 990 P.2d 1, 5 (Alaska 1999)).

-1 6- 7658“The constitutionality of a statute and matters of constitutional or statutory

interpretation are questions of law to which we apply our independent judgment,

adopting the rule of law that is most persuasive in light of precedent, reason, and

policy.” 36

“Questions of contract interpretation are generally questions of law which

we review de novo; but fact questions are created when the meaning of contract language

is dependent on conflicting extrinsic evidence.” 37 “Where the superior court considers

extrinsic evidence in interpreting contract terms,

. . . we will review the superior court’s

factual determinations for clear error and inferences drawn from that extrinsic evidence

for support by substantial evidence.” 38

IV.	 DISCUSSION

A.	 State’s Statutory Claims Against Williams

1.	 The superior court did not err when it concluded that sulfolane

is a hazardous substance under AS 46.03.826(5).

To impose strict liability on Williams under AS 46.03.822(a) for damages

caused by sulfolane releases, the superior court first needed to determine whether

sulfolane is a hazardous substance. 39 It concluded that the sulfolane released by Williams

36 Dep’t of Revenue v. Nabors Int’l Fin., Inc.

, 514 P.3d 893, 898 (Alaska

2022) (quoting Premera Blue Cross v. State, Dep’t of Com., Cmty. & Econ. Dev., Div.

of Ins.

, 171 P.3d 1110, 1115 (Alaska 2007)).

37 Afognak Joint Venture v. Old Harbor Native Corp ., 151 P.3d 451, 456

(Alaska 2007).

38 Nautilus Marine Enters., Inc. v. Exxon Mobil Corp. , 305 P.3d 309, 315

(Alaska 2013) (quoting Villars v. Villars

, 277 P.3d 763, 768 (Alaska 2012)).

39 See AS 46.03.822(a) (describing extent to which persons are liable for costs

associated with unpermitted release of hazardous substances); AS 46.03.826(5) (defining

(continued...)

-1 7- 7658satisfied all three statutory definitions of hazardous substance under AS 46.03.826(5). 40

Williams argues that the superior court misinterpreted the law when it found that

sulfolane met any of the three statutory definitions of hazardous substance. We disagree,

and affirm the superior court’s determination that sulfolane is a hazardous substance

under the Act.

Several weeks before trial, the superior court issued a memorandum

tentatively adopting interpretations of “hazardous substance” used in AS 46.03.822(a)

and defined in subsection .826(5)(A). It later adopted those interpretations in its

decision. The court construed “imminent and substantial danger to the public health” to

mean “a reasonable medical concern about the public health where, given the modifier

‘substantial,’ the nature of the harm giving rise to concern is serious and, given the

modifier ‘imminent,’ the threat of harm must be present, although the potential impacts

may never develop or may take time to develop.” The court primarily drew from several

federal circuit court decisions interpreting federal statutes with “imminent danger”

requirements to cover “potential” harms, 41 as well as our decisions broadly interpreting

39 (...continued)

“hazardous substance”).

40 See AS 46.03.826(5) (defining hazardous substance as (A) a substance

which poses imminent and substantial danger to public health or welfare or natural

environment when released, (B) oil, or (C) a substance defined in CERCLA’s definitions

section at 42 U.S.C. 9601(14)).

41 See Reserve Mining Co. v. EPA

, 514 F.2d 492, 528-29 (8th Cir. 1975)

(interpreting phrase “endangering the health or welfare of persons” from Federal Water

Pollution Control Act to cover discharge of “potentially harmful” substance that gave

“rise to a reasonable medical concern over the public health”); Maine People’s All. v.

Mallinckrodt, Inc. , 471 F.3d 277, 296 (1st Cir. 2006) (holding that, under Resource

Conservation and Recovery Act (RCRA), “an imminent and substantial endangerment

(continued...)

-1 8- 7658AS 46.03.822. 42

The superior court relied on the evidence presented at trial to find that

sulfolane “presents an imminent and substantial danger to the public health” under its

interpretation of AS 46.03.826(5)(A)

— that it “presents a reasonable medical concern,

the nature of which is serious, and the threat of which is present when sulfolane is

released in the environment.” The State called Dr. Ted Wu, a DEC employee and expert

in toxicology and environmental chemistry who reviewed the evidence of contamination

at the refinery. He testified about a number of studies demonstrating sulfolane’s toxic

effects when animals were exposed to it, which could indicate potential adverse effects

on humans. He testified that studies showed sulfolane exposure caused “convulsion[s]

. . . in squirrel monkeys and rats” and vomiting in squirrel monkeys, decreased kidney

and liver functions and white blood cell counts in guinea pigs and rats, increased

aggression in dogs, and increased fetal absorption and deformation in fetuses in rats and

guinea pigs. Dr. Wu explained that squirrel monkeys were more susceptible to sulfolane

than were rodents, suggesting that humans could be even more susceptible than squirrel

monkeys. Dr. Wu also testified that sulfolane is more toxic than about half of the

hazardous substances already identified in DEC’s default groundwater cleanup level

table and that sulfolane travels in groundwater to drinking water wells and thereby

41 (...continued)

requires a reasonable prospect of a near-term threat of serious potential harm”);

Simsbury-Avon Pres. Club, Inc. v. Metacon Gun Club, Inc.

, 575 F.3d 199, 210 (2d Cir.

2009) (discussing “imminency” as used in RCRA to require only “a showing that a ‘risk

of threatened harm is present’ ” (quoting Dague v. City of Burlington

, 935 F.2d 1343,

1356 (2d Cir. 1991))).

42 See Berg v. Popham

, 113 P.3d 604, 609 (Alaska 2005) (interpreting

AS 46.03.822(a) to impose broader arranger liability than that imposed by CERCLA);

Kodiak Island Borough v. Exxon Corp.

, 991 P.2d 757, 765 (Alaska 1999) (adopting a

broad, flexible definition of AS 46.03.822(a)’s cost clauses).

-19

- 7658creates a risk to the public.

The State also called Dr. Mary Beth Leigh, a professor of microbiology at

the University of Alaska Fairbanks, to provide expert testimony about her own

experiments that showed sulfolane was toxic to a bacterium commonly used as a

screening tool for toxicity to organisms. The State called former DEC Commissioner

Larry Hartig and former North Pole Mayor Bryce Ward to testify about sulfolane’s

impact on public welfare and the factors involved in gauging public welfare. Hartig

testified that he understood the legislature’s intent to be that public welfare includes the

people’s “overall health and welfare,” as well as their “economic well-being” and their

“opportunity to have a living” and “subsistence.” Ward testified about the negative

impact sulfolane contamination had on the North Pole community, causing residents to

be upset and concerned about the amount of sulfolane to which they were unwittingly

exposed.

Hartig also testified that DEC considered sulfolane a hazardous substance

in order to address the sulfolane plume with funding from the Oil and Hazardous

Substance Release Response Act Account. 43 Funds from the account are available

expressly to cover State response costs in the event of oil or hazardous substance

releases. 44 The definitions of “oil” and “hazardous substance” in the enabling legislation

are virtually the same as those in AS 46.03.826. To obtain funds from the response

account, the DEC commissioner must find that the oil or hazardous substance released

“poses an imminent and substantial threat to public health or welfare, or to the

43 See AS 46.08.005-.080; AS 46.08.005 (establishing fund available to

respond to release of oil or hazardous substance “to reduce the amount, degree, or intensity of a release or threatened release, and for other related purposes identified in

law”).

44 AS 46.08.040(a), .045.

-20

- 7658environment,” 45 a phrase that is virtually identical to the definition of “hazardous

substance” in AS 46.03.826(5)(A).

The State introduced Williams’s written emergency medical care policy into

evidence. The policy described possible life-threatening effects of sulfolane if inhaled,

ingested, or in contact with the skin or eyes. It listed “[c]ardiac arrhythmias, respiratory

failure, pulmonary edema, paralysis, brain damage, liver damage, lung tissue and

stomach tissue damage” as possible side effects from sulfolane exposure.

Williams presented deposition testimony from Stephanie Buss, a former

DEC employee and toxicologist. When asked to identify “every single fact

. . . that

would indicate that sulfolane is and presents an imminent and substantial danger to the

public health and welfare,” Buss stated that “toxicity studies

. . . indicat[ed] adverse

health effects” and proceeded to identify various studies. She also referred to studies

indicating that sulfolane posed dangers not only to public health and welfare, but also to

“fish and vegetation.”

Williams also called James Fish, a DEC employee and project manager for

the refinery contamination area. Fish testified that the EPA had previously treated

sulfolane as a hazardous substance at a refinery in Puerto Rico. He testified that the

EPA’s approach to the Puerto Rican refinery supported DEC’s decision to consider

sulfolane a hazardous substance.

The superior court relied heavily on Dr. Wu’s testimony to determine that

sulfolane is a hazardous substance under AS 46.03.826(5)(A) based on the danger it

posed to public health and welfare. It found Dr. Wu’s medical concerns about sulfolane

were both “reasonable and serious” and that “ [a]t a minimum, sulfolane exposure can

reduce white blood cell counts; at a maximum sulfolane exposure can cause death.” The

-2 1- 7658 45 AS 46.08.040(a)(1)(A).court also found it notable that, while operating the refinery, Williams itself treated

sulfolane in its emergency medical care policy as though it were life-threatening.

In addition to sulfolane’s demonstrated toxicity, the superior court was

troubled by its chemical properties as well as the concentrations in which it had been

released. The court was not convinced that sulfolane concentrations found in the

environment after it was released were material to establishing whether sulfolane was

hazardous, but it was persuaded that the concentrations at the time of release “into the

subsurface land and water of the State presented an imminent and substantial danger to

the public health and welfare.”

The court also found that DEC’s treatment of sulfolane as a hazardous

substance under AS 46.03.826(5)(A) was entitled to deference. The court reasoned that

“Hartig accessed the [Oil and Hazardous Substance Release] [R]esponse [A]ccount

several times to address the sulfolane contamination,” and each time he had to determine

that “the contamination posed an imminent and substantial threat” to the public health

and welfare or to the environment. The court found that these actions by DEC reflected

“the agency’s conclusions both that sulfolane is a hazardous substance and that the

release at issue is posing an imminent and substantial threat to public health, welfare, or

the environment”; “DEC’s determination that sulfolane is a hazardous substance is

reasonable, supported by the record, and not an abuse of discretion”; and DEC’s

determination “is entitled to judicial deference and it is therefore controlling in this case.”

The court similarly concluded that sulfolane is a hazardous substance because it also

“presents an imminent and substantial danger to public welfare.” In its underlying

findings the court specifically cited the testimony from former officials and scientists

about sulfolane’s impacts on the public health and welfare.

In addition to trial evidence, the superior court relied on admissions in

Williams’s pleadings to support its conclusion that sulfolane was a hazardous substance.

-2 2- 7658The State’s 2014 complaint alleged that “[s]ulfolane is a hazardous substance within the

meaning of AS 46.03.745, AS 46.03.900, AS 46.03.826, and 18 AAC 75.990.” Williams

initially admitted that allegation, but denied that DEC “considered sulfolane to be a

hazardous substance under any statute or regulation at any time during [Williams]’s

ownership and operation of the North Pole Refinery.” Williams later amended its

answer, retaining the sentence denying DEC’s classification of sulfolane as a hazardous

substance, but instead asserting that the State’s allegation that sulfolane is a hazardous

substance was a “legal conclusion to which no response [was] required.” But Williams

did not withdraw an earlier stipulation agreeing that “Flint Hills is a liable landowner and

operator under AS 46.03.822(a) for sulfolane releases.”

The superior court gave some weight to Williams’s initial admission and

its stipulation. The court found that Williams’s “first answer constitute[d] an evidentiary

admission that sulfolane is a hazardous substance, notwithstanding Williams’[s]”

amended pleading, finding support in Brigman v. State

, which recognizes that “[c]ourts

often admit superseded or withdrawn pleadings in civil and criminal cases on the theory

that they constitute evidentiary admissions.” 46 The court also found that Williams

admitted that sulfolane is a hazardous substance when it stipulated as to Flint Hills’s

liability for sulfolane. The court reasoned that “Flint Hills could not be liable under

AS 46.03.822(a) for sulfolane releases if sulfolane were not a hazardous substance. If

sulfolane is a hazardous substance when released by Flint Hills, it is a hazardous

substance when released by Williams.”

In addition to holding Williams strictly liable under AS 46.03.822 due to

hazardous substance releases as defined in AS 46.03.826(5)(A), the court held Williams

strictly liable under section .822 because many of the releases were sulfolane mixed with

- 23- 7658 46 64 P.3d 152, 166 (Alaska App. 2003).oil and because sulfolane wastewater constituted a “petroleum-related byproduct” under

AS 46.03.826(5)(B) and AS 46.03.826(7). 47 The court found that sulfolane was

“released as a constituent of Williams’[s] oil spills” and that “Williams had numerous

spills of gasoline containing sulfolane at the refinery.”

Finally, the court concluded that sulfolane is a hazardous substance under

AS 46.03.826(5)(C). Subsection .826(5)(C) defines as hazardous any “substance defined

as a hazardous substance under 42 U.S.C. 9601(14),” CERCLA’s expansive definition

of hazardous substance that includes “any hazardous waste having the characteristics

identified under or listed pursuant to section 3001 of the Solid Waste Disposal Act [42

U.S.C. § 6921]” (a section better known as the Resources Conservation and Recovery

Act (RCRA)). 48 The court found sulfolane met the hazardous substance definitions under

AS 46.03.826(5)(C) because the EPA had treated it as hazardous waste under RCRA

when it was released at a refinery in Puerto Rico.

Williams argues that the superior court misinterpreted the law when it

found that sulfolane met any of the statutory definitions of hazardous substance in

AS 46.03.826(5). Regarding subsection .826(5)(A), Williams argues that the court’s

definition of “imminent” does not comport with dictionary or judicial definitions of the

word. It contends that an “imminent danger” must be one that “threaten[s] to occur

immediately,” 49 not one that may take time to develop. Quoting the court’s

47 AS 46.03.826(5)(B) (defining “hazardous substance” to include “oil”);

AS 46.03.826(7) (defining “oil” to include “petroleum-related product or by-product”).

48 42 U.S.C. § 9601(14) (governing disposal of hazardous and non-hazardous

solid waste).

49 Quoting Meghrig v. KFC W., Inc.

, 516 U.S. 479, 485 (1996) (citing

W EBSTER ’ S N EW I NTERNATIONAL D ICTIONARY OF THE E NGLISH L ANGUAGE at 1245 (2d

(continued...)

-2 4- 7658memorandum adopting a tentative definition of hazardous substance, Williams alleges

that the court improperly concluded that “imminent and substantial danger to public

health” meant only a “reasonable medical concern about the public health.” 50 Williams

argues that this definition of “imminent and substantial danger” has never been “adopted

by any court, applied by DEC, or advocated by any party during five years of litigation”;

that it runs counter to the plain language of the statute; that it “threatens to deprive a

49 (...continued)

ed. 1934)).

50 This misrepresents the superior court’s definition. The court did not

conclude that an “imminent and substantial danger” meant only a “reasonable medical

concern about the public health,” but also that, “given the modifier ‘substantial,’ the

nature of the harm giving rise to concern is serious and, given the modifier ‘imminent,’

the threat of harm must be present, although the potential impacts may never develop or

may take time to develop.”

Moreover, the court ultimately made separate findings that sulfolane

presented an imminent and substantial danger to the public health and welfare.

Williams’s opening brief primarily argues against the danger to public health finding.

Its arguments about the public welfare findings are limited to a single footnote in its

opening brief that simply incorporates “all the above reasons why sulfolane is not a

hazardous substance in the first instance.” Williams’s reply brief claims that the

arguments are interchangeable. Williams does not challenge the court’s factual findings

about the impact on North Pole residents or its finding that residents’ concerns about

“economic well-being [and] opportunity to have a living” are incorporated in the public

welfare prong of the definition, and fails to adequately address this issue. We thus

consider Williams’s challenge to the court’s finding waived. See Alaska R. App. P.

212(c)(1)(H) (requiring that argument section “explain the contentions of the appellant

. . . and the legal and factual support for those contentions, with citations to the

authorities, statutes, and parts of the record relied on”); Casciola v. F.S. Air Serv., Inc.

, 120 P.3d 1059, 1062 (Alaska 2005) (“We do not consider arguments that are

inadequately briefed.”).

-2 5- 7658defendant of the constitutional right to fair notice” under Stock v. State ; 51 and that it is

contrary to the legislative history. Williams also argues that because the concentrations

of sulfolane “had decreased dramatically and were nowhere near the ranges cited by the

court” by the time the plume reached drinking water wells, the court erred by finding that

sulfolane was hazardous at the time of release.

The State responds that Williams’s proposed definition of “imminent” is

flawed because it would exclude substances causing delayed manifestations of harm,

such as birth defects or cancer. The State emphasizes that the statute uses the word

“danger” rather than “harm” to signify the possibility of harm, rather than the present

existence of harm. And it argues that, even under Williams’s proposed interpretation of

AS 46.03.826(5)(A), trial evidence supports finding sulfolane is a hazardous substance.

The State points to the numerous studies demonstrating sulfolane’s harmful effects on

animals. The State asserts that there is no legal support for Williams’s contention that

“whether a substance is hazardous should turn on its concentrations in the environment

after decades of dilution.”

Williams also asserts that the superior court improperly relied on evidence

from Dr. Wu and DEC employee Stephanie Buss because, although they indicated they

believed sulfolane was a hazardous substance, they did not state explicitly that it

“presents an imminent and substantial danger to public health.” Williams argues that it

was error to infer that sulfolane is a hazardous substance, pointing to a ruling on the

parties’ 2018 motions for summary judgment which discounted Dr. Wu’s affidavit for

not using these statutory terms. The State responds that “[n]o rule of evidence says that

witness testimony ‘must be excluded’ and cannot be used to support a factual finding if

51 526 P.2d 3 (Alaska 1974) (explaining circumstances under which

environmental conservation statutes might be unconstitutionally vague). We address fair

notice and due process in part IV.A.5 below.

-2 6- 7658it does not use particular words from a statutory definition.” The State also points out

that Williams did not “cit[e] contrary evidence or explain [in its brief] why the studies

do not show that sulfolane is dangerous.”

When we interpret a statute, we presume “that the legislature intended every

word, sentence, or provision of a statute to have some purpose, force, and effect, and that

no words or provisions are superfluous.” 52 We apply a “sliding-scale approach” to

interpret the language: “[t]he plainer the statutory language is, the more convincing the

evidence of contrary legislative purpose or intent must be.” 53 To the extent possible, we

“interpret each part or section of a statute with every other part or section, so as to create

a harmonious whole.” 54 Whether a substance meets the legal standard of “hazardous

substance” is a “question of law to which we apply our independent judgment.” 55

We are not p ersuaded by Williams’s arguments. The two key issues are

whether “imminent” dangers under AS 46.03.826(5)(A) can include non-immediate

dangers and whether the facts support concluding sulfolane is a hazardous substance.

Turning to the first issue, we note that because the parties do not discuss the

legislative history of the statute, 56 we look primarily to the plain meaning of the statute.

52 Kodiak Island Borough v. Exxon Corp.

, 991 P.2d 757, 761 (Alaska 1999)

(quoting Rydwell v. Anchorage Sch. Dist.

, 864 P.2d 526, 530-31 (Alaska 1993)).

53 State v. Planned Parenthood of the Great Nw.

, 436 P.3d 984, 992 (Alaska

2019) (quoting State v. Fyfe

, 370 P.3d 1092, 1095 (Alaska 2016)).

54 Id. (original alteration omitted) (quoting Rydwell

, 864 P.2d at 528).

55 See Burton v. Fountainhead Dev., Inc.

, 393 P.3d 387, 392 (Alaska 2017).

56 Williams alludes to its October 2019 response to the court’s interpretation

of “imminent and substantial danger,” when Williams did engage in a legislative history

analysis. However, it makes no arguments now on appeal beyond (1) asserting that

(continued...)

-2 7- 7658The undefined use of “imminent” in statutes and treaties, across diverse subject areas,

has plagued legal scholars for decades. 57 When the legislature enacted

AS 46.03.826(5)(A), Black’s Law Dictionary defined “imminent” as something “[n]ear

at hand; mediate rather than immediate;

. . . impending; on the point of happening;

threatening.” 58 It defined “danger” as “[j]eopardy; exposure to loss or injury; peril.” 59

Similarly, Merriam-Webster’s Collegiate Dictionary defined “imminent” as “ready to

take place” 60 and “danger” as “exposure or liability to injury, pain, or loss.” 61 While an

“imminent danger” is thus typically some harm that is threatening to occur immediately,

the fact that harm ultimately did not occur does not mean that the harm was not imminent

56 (...continued)

AS 46.03.826(5)(A) was enacted prior to subsection .826(5)(C) and thus could not have

been designed to expand subsection .826(5)(C); and (2) making conclusory statements

that the court’s interpretation of imminent and substantial danger “finds no support in the

statutory text or the legislative history.” “[A] party’s briefing must contain its own

arguments and may not merely incorporate arguments from other documents.”

McCormick v. Chippewa, Inc.

, 459 P.3d 1172, 1180 (Alaska 2020). We conclude

Williams’s legislative history arguments were insufficiently briefed and thus waived.

57 See, e.g.

, Authority of the President Under Domestic and International Law

to Use Military Force Against Iraq, 26 Op. O.L.C. 143, 182-84 (2002) (discussing

ambiguities of “imminent” in international law, including temporal elements,

probabilities that threat will materialize, and magnitude of harm that threat would cause

such that immediacy is no longer required).

58 Imminent

, B LACK ’ S L AW D ICTIONARY (rev. 4th ed. 1968) (similarly defined

in current 11th edition).

59 Danger

, id. (similarly defined in current 11th edition). Black’s Law

Dictionary also provides a definition for “imminent danger,” but it applies to the use of

self-defense and seems inapplicable to environmental harms.

60 Imminent

, M ERRIAM -W EBSTER ’ S C OLLEGIATE D ICTIONARY (7th ed. 1963).

61 Danger

, id.

-2 8- 7658at one point. Federal case law cited by the superior court and both parties supports this

interpretation of “imminent danger.” 62 The court’s interpretation of “imminent”

— that

“the threat of harm must be present, although the potential impacts may never develop

or may take time to develop”

— aligns with the plain definition of statutory terms as well

as federal case law interpreting like terms.

Williams’s factual and evidentiary challenges to the hazardous substance

conclusion also fail to withstand scrutiny. Williams does not cite any case law or rules

of evidence to support its argument that expert testimony must exactly track the relevant

statutory text at issue. 63 Alaska Evidence Rule 702(a) allows qualified experts to rely on

their “scientific, technical, or other specialized knowledge” to express opinions that will

“assist the trier of fact to understand the evidence or to determine a fact in issue.” There

is no indication that it would be improper for the trier of fact to rely on expert testimony

if the expert fails to repeat verbatim the statutory language at issue while offering an

opinion. Dr. Wu’s and Buss’s testimony demonstrated that sulfolane, “when it enters

. . .

62 See Meghrig v. KFC W., Inc.

, 516 U.S. 479, 485-86 (1996) (interpreting

RCRA’s “imminent and substantial endangerment” provision as requiring threat of

danger to be then-present even if impact may not be felt until later); Reserve Mining Co.

v. EPA

, 514 F.2d 492, 528-29 (8th Cir. 1975) (interpreting phrase “endangering the

health or welfare of persons” from Federal Water Pollution Control Act to cover

discharge of “potentially harmful” substance that gave “rise to a reasonable medical

concern over the public health”); Maine People’s All. v. Mallinckrodt

, 471 F.3d 277, 296

(1st Cir. 2006) (holding that, under RCRA, “an imminent and substantial endangerment

requires a reasonable prospect of a near-term threat of serious potential harm”);

Simsbury-Avon Pres. Club, Inc. v. Metacon Gun Club, Inc.

, 575 F.3d 199, 210 (2d Cir.

2009) (stating “imminency” standard in RCRA “requires a showing that a ‘risk of

threatened harm is present’ ” (quoting Dague v. City of Burlington

, 935 F.2d 1343, 1356

(2d Cir. 1991))).

63 See Marcia V. v. State, Off. of Child.’s Servs.

, 201 P.3d 496, 508 (Alaska

2009) (rejecting argument that expert testimony must recite statutory language).

-2 9- 7658in or upon the water or surface or subsurface land[,]

. . . presents an imminent and

substantial danger to the public health

. . . including

. . . to fish, animals, vegetation, or

any part of the natural habitat in which they are found.” 64 Dr. Wu testified extensively

about sulfolane’s toxic effects on animals exposed to it. And Williams mischaracterizes

Buss’s deposition testimony, alleging she concluded sulfolane was a hazardous substance

based only on studies showing that “sulfolane has the potential to have adverse effects.”

(Emphasis omitted). But Buss also discussed a study showing “significant impacts of

high concentrations of exposure.” Her deposition testimony indicates that she believed

sulfolane posed an imminent and substantial danger to the public health or welfare, but

she clarified that none of the studies to which she referred used those words so she

avoided saying that a study made such an explicit finding. That Dr. Wu and Buss never

expressly stated “sulfolane presented an imminent and substantial danger to public

health” did not preclude the superior court from making such a finding, especially in

light of the ample evidence suggesting that fact. The superior court did not err by relying

on Dr. Wu’s and Buss’s testimony when making its findings.

Other testimony from Dr. Wu further supports finding sulfolane presents

an imminent and substantial danger to the public health or welfare. He testified about

studies showing negative impacts on plants, earthworms, aquatic invertebrates, and fish

when exposed to sulfolane, including a study demonstrating impacts on embryonic

development in zebrafish when exposed to a range of sulfolane concentrations equivalent

to concentrations found in groundwater near refineries around the world. And the fact

that Williams itself treated sulfolane as a substance with life-threatening characteristics

while handling it further supports the court’s hazardous substance finding.

The superior court also did not abuse its discretion by giving weight to

-3 0- 7658 64 AS 46.03.826(5)(A).Williams’s initial admission that sulfolane was a hazardous substance, which could shed

light on Williams’s own beliefs about whether sulfolane was hazardous. 65 Williams

failed to refute the inferences that could be drawn from its earlier admission, especially

when those inferences were supported by Williams’s own sulfolane-handling practices

at the refinery. 66

2.	 The superior court did not err by awarding response costs to the

State and Flint Hills.

Alaska Statute 46.03.822(a) imposes strict liability on those responsible for

the unpermitted release of hazardous substances for a range of costs, including response

costs. “Response costs” are defined by regulation as “costs reasonably attributable to the

65 In contrast to binding judicial admissions, “evidential admissions are words

or conduct admissible in evidence against the party making them, but subject to rebuttal

or denial.” 29A A M

. J UR

. 2 D Evidence § 769; see 2 K ENNETH S. B ROUN ET AL

., M C C ORMICK O N E VIDENCE § 254 (8th ed. 2020) (defining “judicial admission”).

“Evidentiary admissions may also be made in pleadings that have been superseded,

amended, or withdrawn; answers to interrogatories; and other statements made pursuant

to the

. . . Rule of Evidence governing statements by opposing parties.” 29A A M

. J UR

. 2 D Evidence § 769. Admissions constituting opinion, such as a conclusion of law,

normally include an application of a standard to the facts.

Thus, they reveal the facts as the declarant thinks them to be,

to which the

. . . legal or moral standard involved in the

statement was applied. In these circumstances, the factual

information conveyed should not be ignored merely because

the statement may also indicate the party’s assumptions about

the law.

B ROUN

, supra

, § 256 (citations omitted); see also Cikan v. ARCO Alaska, Inc.

, 125 P.3d

335, 341 (Alaska 2005).

66 Because we affirm the superior court’s conclusion that sulfolane is a

hazardous substance under AS 46.03.826(5)(A), it is not necessary for us to address the

extent to which sulfolane may also be defined as a hazardous substance under

subsections AS 46.03.826(5)(B) and (C).

-3 1- 7658site or incident” including “the costs of direct investigation, containment and cleanup,

removal, and remedial actions associated with an incident or site undertaken by the

department

. . . as well as the costs of oversight.” 67

The superior court found that the State’s and Flint Hills’s plans to “provide

alternative water in the form of a piped water expansion project [were] reasonable and

not arbitrary or capricious.” There was expert testimony that groundwater remediation

would likely cost at least $6 million more than expanding the piped water system, and

would take decades to achieve. The court found “Williams

. . . liable for the estimated

costs of the piped water system, $72,228,154, as an appropriate response cost under

.822(a).” 68 Other response costs included those incurred by Flint Hills to deliver bulk

and bottled water in the interim and to drill new public wells after sulfolane was detected

in the City’s source wells. The interim water deliveries were part of a project costing

$27.67 million, and the new City source wells cost $4.39 million.

Williams argues that the superior court erred by awarding the State

response costs for the piped water system and new wells, claiming the piped water

system was unnecessary, not cost-effective, and unreasonable. Williams also argues the

superior court erred by awarding Flint Hills costs for bottled water to North Pole

residents, contending that new wells for the City and “providing alternative water to

residents on an interim basis” were unnecessary.

Williams points to several environmental conservation regulations to

67 18 Alaska Administrative Code (AAC) 75.910(b) (2021).

68 The court calculated expected cost for the piped water system

— $72,228,154

— based on “payments from escrow to date by the State of $11,599,681 and

$44,378,473 from Flint Hills; an additional $16.25 million is expected to be required to

complete the project.” It then determined that Williams was equitably responsible for

75% of the State’s and Flint Hills’s future costs related to the piped water system.

-3 2- 7658support its assertion that “Site Cleanup Rules require those responsible for contamination

to take only those actions ‘necessary to protect human health, safety, and welfare, and

the environment.’ ” 69 But as the State points out, the standard in the site cleanup

regulations differs from that required by statute. 70 The regulations mainly focus on what

the responsible party must do to remedy contamination it has caused, which could be

read to require only that the responsible party take the minimum protective actions

“necessary.” 71 But when considered in light of the policy behind the Environmental

69 Quoting 18 AAC 75.335 (requiring responsible party to generate site

characterization plans prior to hazardous substance cleanup), and also citing 18 AAC

75.345 (requiring cleanup to meet specific levels), .360 (specifying cleanup operation

requirements for responsible party), .380 (detailing responsible party’s reporting and site

closure requirements), and .990 (chapter definitions, including “cleanup level”).

70 See AS 46.03.822(a) (imposing strict liability on responsible parties for

damages resulting from “unpermitted release of a hazardous substance,” including “costs

of response, containment, removal, or remedial action, . . . and for the additional costs

of a function or service, including administrative expenses for the incremental costs of

providing the function or service”); AS 46.03.824 (“Damages include but are not limited

to injury to or loss of persons or property, real or personal, loss of income, loss of the

means of producing income, or the loss of an economic benefit.”); see also Kodiak Island

Borough v. Exxon Corp.

, 991 P.2d 757, 765 (Alaska 1999) (construing, in dicta,

“subsection .822(a)’s statement of specific compensable costs to be exemplary and

inclusive, not definitive or exclusive” and “adopt[ing] a literal and inflexible view of

subsection .822(a)’s cost clauses would be fundamentally inconsistent with what we

perceive to be the legislature’s primary intent in enacting these provisions: to hold

responsible parties strictly liable for all provable spill-related harms”).

71 See 18 AAC 75.990(17) (defining “cleanup” to include “removal of a

hazardous substance from the environment, restoration, and other measures that are

necessary to mitigate or avoid further threat to human health, safety, or welfare, or to the

environment” (emphasis added)); 18 AAC 75.335(c)-(d) (describing requirements of site

characterization report submitted to DEC and allowing DEC to “modify proposed

cleanup techniques or require additional cleanup techniques for the site as the department

(continued...)

-3 3- 7658Conservation Act and its enabling regulations, it is more likely that the provisions

Williams cites operate to establish a baseline cleanup level for the responsible parties,

and not a ceiling for the State to respond to the contamination. 72 The State incurred costs

as a result of Williams’s hazardous substance releases and Williams is therefore strictly

liable for them.

Williams further argues that the piped water system was unnecessary

because DEC had not established a cleanup level required to make the groundwater safe

for human consumption 73 and the court had not made findings that piped water was

71 (...continued)

determines to be necessary to protect human health, safety, and welfare, and the

environment”); 18 AAC 75.345(c) (allowing DEC to set more stringent groundwater

cleanup levels than those currently published if it “determines that a more stringent

cleanup level is necessary to ensure protection of human health, safety, or welfare, or of

the environment”); 18 AAC 75.345(d) (allowing DEC to “require a responsible person

to provide an alternative source of drinking water for the affected parties or implement

other institutional controls

. . . until a cleanup level is established” when “toxicity

information is insufficient to establish a cleanup level for a hazardous substance or a

pollutant that ensures protection of human health, safety, and welfare, and of the

environment”).

72 See 18 AAC 75.910(b) (holding responsible parties liable for “response

costs” and defining response costs as “costs reasonably attributable to the site or

incident” including “costs of direct investigation, containment and cleanup, removal, and

remedial actions associated with an incident or site undertaken by the department

. . . as

well as the costs of oversight”); see also AS 46.03.760(d) (holding responsible person

“liable to the state

. . . for the full amount of actual damages caused to the state by the

violation, including” costs for abatement, containment, restoration, and emergency

response costs); AS 46.03.780 (allowing for broad recovery when hazardous substance

release “injures or degrades the environment”).

73 DEC had not yet set cleanup levels because of uncertainty about its toxicity

data for sulfolane. In 2015 the EPA recommended that DEC refrain from doing so until

the EPA had completed its own toxicity studies evaluating the health effects of sulfolane

(continued...)

-3 4- 7658necessary for human or environmental health. For example, Williams claims there was

no evidence demonstrating that “the low levels of sulfolane in North Pole area wells have

caused adverse health effects.” The State again points to the text of AS 46.03.822, where

the extent of liability and recovery is untethered to findings of “necessity” or “cleanup

levels.” The State argues that Williams could have proposed a cleanup level 74 and

Williams’s failure to participate “in the regulatory process

. . . puts it in a poor position

to now raise regulation-based objections to DEC’s response.” Furthermore, regulations

expressly allow DEC to require a responsible person to provide alternative water sources

when “toxicity information is insufficient to establish a cleanup level for a hazardous

substance or a pollutant.” 75 And, as discussed below, feasibility studies showed that

alternatives to the piped water system such as remediating the groundwater would be

costly, difficult to implement, uncertain to succeed, and could pose additional risks.

Thus establishing a level to which groundwater concentrations would need to have been

returned was irrelevant in these circumstances. The superior court properly concluded

that the statutes did not require the State to prove that the piped water system was

necessary. 76

73 (...continued)

exposure.

74 See 18 AAC 75.345(b)(3) (allowing DEC to approve responsible party’s

proposed alternative cleanup level).

75 18 AAC 75.345(d).

76 While Williams alleges that the State had ulterior motives in its pursuit of

the piped water system

– to “save face with the public” and to remedy other nonsulfolane contamination problems with well water

– our review of the record reveals no

such bad-faith motives.

In contrast, Williams’s argument borders on bad faith when it selectively

(continued...)

-3 5- 7658Williams next argues that the piped water system is not cost-effective, and

thus is not “practicable” as required by regulation. 77 Williams alleges that “[n]either the

State nor Flint Hills offered any evidence that the piped water system was the most costeffective remedy” and that State witnesses conceded that this was not a factor DEC

considered. While the State mostly focuses on the absence of any statute requiring that

it prove piped water is the most cost-effective remedy, it also points to witness testimony

discussing the benefits of piped water over other alternatives. The State noted that its

permanency, cost, safety, and reliability made piped water superior to delivering bottled

water or to “restor[ing] the aquifer to its natural condition.” Williams’s sole proposal

besides doing nothing was to conduct air sparging, a form of remediating the aquifer that

DEC, as well as Flint Hills’s environmental contractor, had already considered and

76 (...continued)

relies on a DEC employee’s testimony to claim that the State sought “to remedy water

quality issues unrelated to sulfolane that make the well water ‘unpalatable without

treatment.’ ” The employee, referring to aesthetic differences, said the water was “a little

unpalatable without treatment.” And Williams’s references to other contamination are

unsupported by the record and are irrelevant to assessing the response costs the State

incurred out of concern for the potential public health and welfare impacts from sulfolane

contamination.

77 “Practicable” is defined as “capable of being designed, constructed, and

implemented in a reliable and cost-effective manner, taking into consideration existing

technology, site location, and logistics in light of overall project purposes.”

18 AAC 75.990(93). The definition “does not include an alternative if the incremental

cost of the alternative is substantial and disproportionate to the incremental degree of

protection provided by the alternative as compared to another lower cost alternative.” Id.

Williams cites 18 AAC 75.325(f)(1)(D) to support its assertion. In relevant

part, this section instructs a responsible person, “to the maximum extent practicable,

. . . [to] prevent, eliminate, or minimize potential adverse impacts to human health, safety,

and welfare, and to the environment, onsite and offsite, from any hazardous substance

remaining at the site.” 18 AAC 75.325(f)(1)(D). Williams mischaracterizes this as a

requirement for DEC, rather than the responsible party.

-3 6- 7658determined would be costly, ineffective, and could pose additional risks to the

community.

Williams further asserts that the piped water system’s cost was exorbitant

rather than cost-effective because “[o]nly 86 private wells

. . . in recent years” recorded

measurements of at least 20 ppb of sulfolane. Williams therefore calculated the cost of

the piped water amounted to “over $837,000 per affected well.” The State responds that

the statute imposes strict liability for actual damages and response costs rather than for

only the most cost-effective measures taken. 78 Flint Hills points to trial testimony

tending to show cost-effectiveness for the piped water system was considered both in its

design and at trial. The record also reveals that the sulfolane plume is migrating and not

expected to degrade quickly, and that the uncertainty about effects of long-term exposure

to sulfolane justifies preventative measures such as the piped water system.

Even if the statutes or regulations required that response costs be

“necessary” and cost-effective, the State persuasively argues that the record supports

such a finding. The superior court found that the piped water system would be

“reasonable and not arbitrary or capricious” as an alternative water source because it is

a common solution for large-scale groundwater contamination, offers an effective longterm solution, would require less maintenance, and would be more convenient.

Furthermore, testimony from Williams’s own experts supports finding that the interim

bottled water deliveries and piped water system design were reasonable.

The record supports the superior court’s decision to hold Williams liable

78 See AS 46.03.760(d) (holding responsible party “liable to the state

. . . for

the full amount of actual damages caused to the state by the violation, including” costs

for abatement, containment, restoration, and emergency response costs); AS 46.03.780

(allowing for broad recovery when hazardous substance release “injures or degrades the

environment”).

-3 7- 7658for the response costs for the piped water system, interim water provisions, new wells,

and public outreach. The court did not clearly err by finding they were reasonable

resolutions to the sulfolane groundwater contamination. We affirm the award of

response costs to the State and Flint Hills for Williams’s sulfolane releases under

AS 46.03.822.

3.	 The superior court did not err by awarding damages for loss of

access to groundwater due to sulfolane contamination.

The superior court determined there was a “component of natural resources

damage” from sulfolane “that [was] not addressed by the provision of alternative water

supplies,” i.e., “loss of the right of the public to have access to uncontaminated

groundwater.” The court noted that some people might prefer using well water, and it

noted that if the sulfolane plume migrates

— as is predicted

— to areas beyond the piped

water system, the impact might create further burdens given the “inconveniences and

limitations” of installing water filtration systems for well water in those areas. The court

explained that, while in some instances it might not be strictly necessary for residents to

use groundwater since they might have alternatives, Williams’s sulfolane releases had

affected people’s access to groundwater due to pollution and this was an

“uncompensated ‘adverse environmental effect’ ” per AS 46.03.760(a)(1) which was

“deserving of reasonable compensation.” The court awarded $2,533,125 to the State for

Williams’s 75% responsibility for the groundwater-related damages.

Williams claims that awarding damages based on the public’s loss of “the

option to choose” to access uncontaminated groundwater was error. Williams argues,

first, that no such right to uncontaminated groundwater exists under state law and that

the c ourt based this right only on “its speculation that ‘[s]ome people may prefer well

water,’ ” for which there was no evidence. Williams further argues that even if a right

to access uncontaminated groundwater existed, it is held by the public; thus, the State is

-3 8- 7658not harmed and cannot recover damages.

Williams is incorrect that the superior court based the existence of the right

solely on residents’ potential subjective preference for groundwater. The court noted

that preference but also considered other reasons why access to groundwater was

important to the public. For instance, areas not served by the piped water system would

have limited and costly means for access to clean water.

Williams is also incorrect that there is no basis in state law to award

damages for the loss of access to groundwater. Liability for such contamination is

explicitly laid out in AS 46.03.760. The statute provides that a person who violates the

Act is liable to the State for damages in the form of a civil assessment. 79 Even if there

were no independent right of access to clean groundwater, the State could pursue

damages for harm to this natural resource based on Williams’s violations of the Act.

Furthermore, Williams’s argument that the State cannot pursue legal action

for harm to a right held by the public ignores the State’s role as trustee of public trust

resources. As we have explained, “[t]he public trust doctrine provides that the State

holds certain resources (such as wildlife, minerals, and water rights) in trust for public

use, ‘and that government owes a fiduciary duty to manage such resources for the

common good of the public as beneficiary.’ ” 80 Alaska’s Constitution provides that

“[w]herever occurring in their natural state,

. . . waters are reserved to the people for

79 AS 46.03.760(a).

80 Kanuk ex rel. Kanuk v. State, Dep’t of Nat. Res.

, 335 P.3d 1088, 1099-1100

(Alaska 2014) (quoting Baxley v. State

, 958 P.2d 422, 434 (Alaska 1998)); see also

AS 46.03.010 (articulating policy of environmental conservation statutes to “enhance the

health, safety, and welfare of the people

. . . and their overall economic and social wellbeing,” and to coordinate resource management “to the end that the state may fulfill its

responsibility as trustee of the environment for the present and future generations”).

-3 9- 7658common use,” 81 articulating the public trust doctrine for Alaska’s waters. 82 “Waters”

comprising the public trust are broadly defined. 83 Besides navigable waters, this includes

“public water,” 84 which is defined as “all other water, whether inland or coastal, fresh or

salt, that is reasonably suitable for public use and utility.” 85 Thus, groundwater is a

public trust resource over which the State serves as trustee. 86

81 Alaska Const. art. VIII, § 3. These rights are subject to appropriation and

reservation rights. Id. at § 13. Alaska’s Water Use Act, codified at AS 46.15.010-.270,

reiterates these provisions and regulates water appropriation and reservation.

AS 46.15.030.

82 See Kanuk

, 335 P.3d at 1099 (“We have frequently compared the state’s

duties as set forth in [a]rticle VIII to a trust-like relationship in which the state holds

natural resources such as fish, wildlife, and water in ‘trust’ for the benefit of all

Alaskans.” (quoting Brooks v. Wright

, 971 P.2d 1025, 1031 (Alaska 1999))). See also

AS 46.03.010(b) (“It is the policy of the state

. . . to develop and manage the basic

resources of water, land, and air to the end that the state may fulfill its responsibility as

trustee of the environment for the present and future generations.”).

83 Owsichek v. State, Guide Licensing & Control Bd.

, 763 P.2d 488, 492

(Alaska 1988) (“A careful reading of the constitutional minutes establishes that the

provisions in article VIII were intended to permit the broadest possible access to and use

of state waters by the general public.” (quoting Wernberg v. State

, 516 P.2d 1191, 1198­

99 (Alaska 1973))).

84 See AS 38.05.126 (recognizing constitutional right of public access to

navigable and public water).

85 AS 38.05.965(21).

86 Some other jurisdictions also recognize groundwater as a public trust

resource, such as Hawai’i, In re Water Use Permit Applications

, 9 P.3d 409, 445 (Haw.

2000), and Vermont, Vt. Stat. Ann. tit. 10, § 1390(5). But some jurisdictions have not

extended the doctrine or have limited its applicability. See, e.g.

, Env’t L. Found. v. State

Water Res. Control Bd.

, 237 Cal. Rptr. 3d 393, 402 (Cal. App. 2018) (holding public

trust doctrine applicable to groundwater extraction only where such extraction impacts

(continued...)

-4 0- 7658The trust relationship serves as a basis for the State’s authority to manage

the use of and access to trust resources for “beneficial uses or public purposes.” 87 The

public trust doctrine has been used to restrain governmental use of public resources, 88 but

it also enables the State to recover damages from third parties for harm to trust

resources. 89 To make a public trust claim, the government must show that a party caused

unreasonable interference with the public’s ability to enjoy a public trust resource. 90

The superior court found that the public’s ability to use and enjoy the

groundwater was affected by sulfolane contamination. The court noted that “[c]lean

water is critically important to the City” and “more than 7,000 people rely on the

groundwater for domestic and commercial water needs.” The public could no longer

safely use the groundwater for these needs because of the sulfolane contamination.

86 (...continued)

navigable waterways).

87 State, Dep’t of Nat. Res. v. Alaska Riverways, Inc.

, 232 P.3d 1203, 1211-12

(Alaska 2010); see also Brooks v. Wright

, 971 P.2d 1025, 1030 (Alaska 1999).

88 See Kanuk ex rel. Kanuk v. State, Dep’t of Nat. Res.

, 335 P.3d 1088, 1102

(Alaska 2014) (“[O]ur past application of public trust principles has been as a restraint

on the State’s ability to restrict public access to public resources.

. . .”).

89 Owsichek v. State, Guide Licensing & Control Bd.

, 763 P.2d 488, 495 n.12

(Alaska 1988) (describing In re Steuart Transp. Co.

, 495 F. Supp. 38, 40 (E.D.Va.1980)

as illustrative of public trust basis for “federal and state governments to recover damages

for migratory waterfowl killed in oil spill”); see also Allan Kanner, The Public Trust

Doctrine, Parens Patriae

, and the Attorney General as the Guardian of the State’s

Natural Resources

, 16 D UKE E NV ’ T L. & P OL ’ Y F. 57, 94 (2005) (citing case law from

New Jersey, Maine, and Maryland to support claim that “[t]he right of a state to recover

compensatory damages for the destruction of natural [resources] is well established”).

90 Kanner, supra note 90 at 59 (citing W ILLIAM H. R ODGERS

, H ORNBOOK ON

E

NVIRONMENTAL L AW 176 (1977 & Supp. 1984)).

-4 1- 7658Although the exact nature of the risk posed by sulfolane remains to be understood, there

was extensive information in the record to support the superior court’s conclusion that

it presented a danger to public health and welfare. There was also sufficient evidence

in the record that the contamination was caused by “unreasonable” conduct. Williams

itself treated sulfolane as a hazardous substance and was aware of potential, if not yet

established, environmental impacts. And at least by 1996, Williams was aware that

sulfolane was entering the groundwater. Yet Williams used inappropriate wastewater

treatment practices, such as directing sulfolane into the wastewater treatment system

despite being warned by the sulfolane manufacturer not to do so and knowingly using

corroded sumps and leaky wastewater lagoons. Williams unreasonably interfered with

the public’s use of groundwater resources, and the State could properly pursue damages

for that interference.

Williams also argues that even if a right t o uncontaminated groundwater

exists, awarding damages for its violation would result in an unlawful double assessment

of penalties. Williams points out that the superior court determined that imposing

damages for the cost of restoring the aquifer to its original condition in addition to

imposing damages for the cost of the piping system would be an “inappropriate double

assessment of damages.” Williams contends that it would therefore be irrational for the

court to award both damages for the piping and damages to compensate the public for

the loss of the option to choose well water as that, too, would be an inappropriate double

assessment.

We disagree with Williams’s characterization of the damages as a double

assessment. The relevant statutes provide for specific forms of recovery for violations

of AS 46.03. Subsection .760(a) provides for civil assessments within a determined

range to reflect “reasonable compensation in the nature of liquidated damages for any

adverse environmental effects caused by the violation,” “reasonable costs incurred by the

-4 2- 7658state in detection, investigation, and attempted correction of the violation,” and

“economic savings realized by” the violator due to their noncompliance. (Emphasis

added.) Section .780 allows costs for restoration following harm to natural resources,

providing for damages in “an amount equal to the sum of money required to restock

injured land or waters, to replenish a damaged or degraded resource, or to otherwise

restore the environment of the state to its condition before the injury.” 91

The superior court explained that the piped water system “substantially

replaced the damaged aquifer” in “an economic usage sense,” and for this reason

awarding the cost of restoring the aquifer in addition to the cost of the piping would be

a double recovery. The court also determined that awarding restoration costs twice,

under both subsection .760(d) and subsection .780(b), would be duplicative because

these were the same categories of loss.

However, the superior court found that the public’s loss of its ability to

access uncontaminated groundwater was an independent harm that was not addressed by

providing alternate water supplies. We agree. The superior court explained that the loss

of access is an independent harm: the plume might migrate further to areas that do not

have piping and, consequently, alternatives would be inconvenient and limited. New

construction or uses — including subsistence uses like growing food — within the

existing plume but outside the piping area will be affected by the limited alternative ways

to obtain clean water. Furthermore, the damages awarded for loss of groundwater were

neither restoration damages covered by section .780 nor a cost expended by the State in

“attempted correction of the violation” 92 under subsections .760(a)(2) or .760(d); rather,

91 AS 46.03.780(b).

92 See AS 46.03.760(a)(2); see also AS 46.03.760(d) (detailing responsible

party’s liability for state’s costs “associated with the abatement, containment, or removal

(continued...)

-4 3- 7658the groundwater damages were compensation for a distinct “adverse environmental

effect[]” provided for in subsection .760(a)(1). Awarding damages based on the loss of

groundwater access was not duplicative or unfounded, and the superior court did not

abuse its discretion by awarding compensation for this loss.

Williams raises a third challenge to the superior court’s award under section

.760. Williams contends that, even if a groundwater access right exists, it could only be

compensated as natural resource damages under section .780. Williams does not explain

why section .760 would not apply. The language in subsection .760(a)(1) allowing

compensation for “any adverse environmental effects” is broad and allows for recovery

related to the groundwater access issue.

Williams further claims that AS 46.03.760(a)(1) “requires a specific finding

on the ‘degree to which [Williams’s releases of sulfolane] degraded the existing

environmental quality.’ ” 93 Williams contends that the superior court did not, and could

not, make such a finding. We have not had occasion to interpret whether this subsection

requires such a finding, or whether it is only one of many possible factors a court may

consider “when applicable.” 94 But it is unnecessary to decide because the extent of

92 (...continued)

of the pollutant” and “restoration of the environment”).

93 Quoting AS 46.03.760(a)(1).

94 The statute provides that the sum to be assessed for a violation shall reflect,

when applicable,

(1) reasonable compensation in the nature of liquidated

damages for any adverse environmental effects caused by the

violation, which shall be determined by the court according

to the toxicity, degradability, and dispersal characteristics of

the substance discharged, the sensitivity of the receiving

(continued...)

-4 4- 7658degradation in this case was established: previously potable water had been determined

to be unusable for drinking and related purposes throughout the three-and-a-half-mile

long

— and spreading

— plume.

It is unclear why Williams claims the court “could not” have made a finding

on the degree of degradation. Even if true, that argument is unpersuasive because

Williams fails to understand the purpose of liquidated damages in redressing

environmental violations. As the superior court explained, liquidated damages may be

used when the measure of actual damages is uncertain. 95 The uncertainty often inherent

in determining the environmental impacts of pollution is, in part, a reason that liquidated

damages were made available by the legislature. It would be nonsensical in this statutory

context to preclude an award of liquidated damages due to uncertainty as to the exact

degree of degradation. The civil assessment statute provides for liquidated damages

within a predetermined range, limited by a ceiling established by the legislature, to

enable an award for damages that are uncertain and difficult to value. The court’s choice

of damages within that range was guided by factors listed in the statute and does not

reflect an abuse of discretion.

Williams adds that there can be no finding that sulfolane “contaminated”

the aquifer because 18 AAC 75.990(22) defines “contaminated groundwater” as water

“containing a concentration of a hazardous substance that exceeds the applicable cleanup

94 (...continued)

environment, and the degree to which the discharge degrades

existing environmental quality.

. . .

AS 46.03.760(a).

95 See Henash v. Ipalook

, 985 P.2d 442, 447 (Alaska 1999) (discussing

various r oles for liquidated damages, including as penalty to assist in deterrence or as

compensation for damages that are “too obscure and difficult of proof” (quoting

Overnight Motor Transp. Co. v. Missel

, 316 U.S. 572, 583-84 (1942))).

-4 5- 7658level.” It claims that because no such cleanup level has been set, there is no

“contamination” of the groundwater and instead the State was given a “free pass to

recover without an objective standard.” This argument is unpersuasive. As discussed,

18 AAC 75 regulates and facilitates site cleanup. It does not purport to define or set out

the measures for all potential damages available under the environmental conservation

statutes. Thus, applying a definition of “groundwater contamination” drawn from these

cleanup regulations is largely irrelevant to determine whether the aquifer was

contaminated in violation of a provision of AS 46.03. The superior court correctly said

as much in its orders. Second, the provisions that are related to cost recovery in

18 AAC 75.910 were promulgated pursuant to AS 46.03.760(d) and AS 46.03.822 (as

well as other statutes not relevant here). To the extent that definitions from the

administrative regulations apply to damages assessments in AS 46.03, they would apply

only to the calculation of “actual damages caused to the state by the violation” associated

with remediation and restoration under AS 46.03.760(d), rather than to liquidated

damages for “any adverse environmental effects caused by the violation” under

subsection .760(a)(1). 96 Williams acknowledges as much, stating that “18 AAC 75.910

expressly covers claims under 46.03.760(d).”

As a final challenge to the access-to-groundwater damages award under

section .760, Williams argues that the assessment of liquidated damages against it,

covering the eighteen and a half years that Williams operated the refinery, is punitive

rather than “compensatory and remedial in nature” as required by the civil assessments

statute. 97 Williams claims that punitive damages are not permitted and that it “lawfully”

96 And as the State points out, subsection .760(a) “does not even use the word

‘contamination,’ ” and instead uses the term “adverse environmental effect.”

97 AS 46.03.760(b).

-4 6- 7658used sulfolane because “DEC allowed Williams to leave it in the ground

. . . and never

once told Williams it was violating the law by doing so.” We are not persuaded. When

Williams reported it had detected sulfolane in the refinery groundwater, DEC experts

expressed uncertainty and some concern about the substance, for which there was a

paucity of toxicity information. DEC admitted its lack of information and advised

Williams to monitor its releases while DEC investigated the hazardous nature of

sulfolane. These actions are not equivalent to permitting sulfolane releases. Moreover,

as the State correctly argues, Williams’s use of sulfolane may have been allowed, but its

releases into the soil and water were not; such releases would have required a permit that

Williams did not obtain. 98

We note that CERCLA’s regulatory scheme and analogous state statutes

such as AS 46.03.822 impose strict liability, even retroactively, and are constructed so

that polluters

— not the public

— bear the risk of uncertainty that the substances they use

or dispose of may later be considered hazardous and subject polluters to liability. 99

Holding businesses liable for pollution caused by activities from which they profited is

98 The superior court concluded likewise in an order denying summary judgment to both Williams and the State for various claims: “ ‘[U]npermitted’ means

without ‘the authority of a valid permit issued by the department or by the Environmental

Protection Agency.’ Because [Williams] has conceded that it did not have a permit

issued by the DEC or EPA to release sulfolane, its release of that substance was

unpermitted.” And testimony at trial demonstrates that Williams’s employees knew they

did not have the requisite permits to release sulfolane. See AS 46.08.900 (defining

“release” and “permitted release”).

99 See United States v. Ne. Pharm. & Chem. Co.

, 810 F.2d 726, 732 (8th Cir.

1986) (finding CERCLA applies retroactively); Kodiak Island Borough v. Exxon Corp.

, 991 P.2d 757, 762 (Alaska 1999) (finding section .822 analogous to CERCLA in

imposing retroactive liability); see also Burlington N. & Santa Fe Ry. Co. v. United

States

, 556 U.S. 599, 622 (2009) (Ginsburg, J., dissenting) (discussing CERCLA’s

polluter pays principle).

-4 7- 7658not punitive, but is rather a compensatory remedy to spread costs among responsible

parties so they are not borne solely by the public. For these reasons, it is not punitive to

assess damages over the entire period of Williams’s refinery operations in North Pole.

In sum, the superior court did not err by assessing damages under

subsection .760(a) for the adverse effect of sulfolane pollution on groundwater and its

impact on the public’s ability to access the groundwater for consumption. The superior

court also properly interpreted the scope of damages permitted by sections .760 and .780,

made the requisite factual findings without clear error, and properly exercised its

discretion when determining awards that were neither duplicative nor punitive.

4.	 It was error to issue injunctive relief by reference to supporting

documents, but the superior court did not err by granting

declaratory relief.

The superior court awarded injunctive and declaratory relief to the State and

Flint Hills under AS 46.03.765 for PFAS-related claims. 100 The court found “PFOS and

PFOA are hazardous substances” under AS 46.03.822 and are “[t]he compounds

encompassed by the acronym PFAS.” The court also found that no evidence was

100 AS 46.03.765 affords the court “jurisdiction to enjoin a violation of this

chapter

. . . or of a regulation, a lawful order of the department, or permit, approval, or

acceptance, or term or condition of a permit, approval, or acceptance issued under this

chapter.”

Williams also argues that the superior court erred when it chose not to refer

onsite PFAS claims to DEC under the doctrine of primary jurisdiction. When the

superior court properly has jurisdiction, its decision to refer an issue to an executive

agency is plainly within its discretion and is informed by factors such as judicial

economy and administrative expertise. See Seybert v. Alsworth

, 367 P.3d 32, 39 (Alaska

2016). The superior court did not abuse its discretion, especially in light of years of

pretrial litigation of this issue and DEC’s determination that Williams was responsible

for PFAS and other hazardous substance contamination during its tenure. Referral would

not have served the purposes of the primary jurisdiction doctrine.

-4 8- 7658presented at trial that “PFAS-related products were used or PFAS releases occurred

during Flint Hills’[s] tenure at the [refinery].” It therefore declared Flint Hills was not

a responsible party under section .822 for onsite PFAS contamination at the refinery.

The superior court concluded in paragraph 3(a) of the judgment that Williams was

“strictly, jointly, and severally liable for sulfolane, [and] PFAS . . . releases, including

liability for the State’s future response costs.” It therefore declared in paragraph 3(b) that

the State could recover 75% of its future costs related to the piped water system. In

paragraph 3(d) of the judgment, the court further ordered Williams to “perform and pay

for remediation and cleanup efforts as directed by DEC with respect to sulfolane

groundwater contamination beyond the

. . . Refinery property and with respect to PFAS

contamination at the Refinery property.” And under paragraph 3(e), the superior court

ordered Williams to

i.	 perform monitoring and reporting of sulfolane

groundwater contamination beyond the

. . . Refinery

property boundary required under [DEC] approved

plans;

ii.	 address PFAS soil and groundwater contamination at

the Refinery property in accordance with DEC

requirements, including characterization, monitoring,

reporting, containment, and cleanup; [and]

iii.	 otherwise comply with DEC’s site cleanup rules,

including 18 AAC 75 and other applicable state laws,

for sulfolane contamination beyond the Refinery

property and PFAS contamination at the Refinery

property.

Additionally, the court ordered Williams to “indemnify, defend, hold harmless, and

reimburse Flint Hills for 100% of all future costs, expenses, claims, and damages

incurred related to [onsite] PFAS contamination.”

-4 9- 7658a. Challenges to the injunctive relief

Williams argues that awarding injunctive relief to the State was improper

because the State “failed to put on evidence that irreparable injury would result absent

injunctive relief.” While we have recognized that irreparable harm and inadequate

remedies at law are required elements for common law injunctive relief, 101 the State

argues that AS 46.03.765 grants the court “jurisdiction to enjoin a violation” of Title 46,

Chapter 3, negating the need for the State to show either element. 102 In its reply,

Williams argues that AS 46.03.765 permits only “temporary or preliminary relief” and

is meant to provide DEC “with a tool to stop a polluter from continuing to release

contaminants until final relief may be obtained.” But the statute does not prohibit

permanent injunctions; it merely provides additional requirements for temporary or

preliminary relief due to the reduced opportunity for due process in such situations, 103

further indicating that permanent injunctions

— which do not entail those same due

process concerns — are permitted. And even those additional requirements for

temporary or preliminary relief fall short of requiring irreparable harm. 104 Williams’s

101 Lee v. Konrad

, 337 P.3d 510, 517 (Alaska 2014) (“Equitable injunctive

relief is an extraordinary remedy that is appropriate only where the party requesting relief

is likely to suffer irreparable injury and lacks an adequate remedy at law.”).

102 See LeDoux v. Kodiak Island Borough

, 827 P.2d 1121, 1123 (Alaska 1992)

(“Where a statute specifically authorizes injunctive relief, the plaintiff need not show

either irreparable injury or lack of an adequate remedy at law.” (quoting Carroll v. El

Dorado Ests. Div. No. 2 Ass’n, Inc.

, 680 P.2d 1158, 1160 (Alaska 1984))).

103 See AS 46.03.765 (“In actions brought under this section, temporary or preliminary relief may be obtained upon a showing of an imminent threat of continued

violation, and probable success on the merits, without the necessity of demonstrating

physical irreparable harm.”).

104 See id.

-5 0- 7658arguments that the injunction should be vacated for failing to meet necessary elements

are therefore unpersuasive.

Williams next argues that paragraphs 3(d) and 3(e) of the court’s final

judgment violate Alaska Civil Rule 65(d) for being too “vague” and “open-ended.” Civil

Rule 65(d) provides in relevant part that “[e]very order granting an injunction

. . . shall

set forth the reasons for its issuance; shall be specific in terms; [and] shall describe in

reasonable detail, and not by reference to the complaint or other document, the act or acts

sought to be restrained.” First, Williams argues paragraph 3(d) of the judgment is

impermissibly vague because: (1) “it identifies no ‘remediation and cleanup efforts’ that

Williams must undertake and the Judgment refers to documents that did not yet exist”;

(2) “the injunction’s geographic scope to remedy and clean up sulfolane is apparently

limitless”; and (3) “there is no time limit on Williams’[s] obligations, which exposes

Williams to liability for future costs to remedy releases to which it played no part.”

Williams challenges paragraph 3(e) of the injunction for similar reasons: it “broadly

purports to make Williams responsible forever for sulfolane contamination ‘beyond the

Refinery property,’ ” and “incorporates all ‘applicable’ Alaska laws, without further

guidance or specificity” leaving Williams unable to determine exactly what conduct is

required. 105

105 See Hughey v. JMS Dev. Corp.

, 78 F.3d 1523, 1531 (11th Cir. 1996)

(explaining Federal Rule of Civil Procedure 65 regarding injunctions “serves to protect

those who are enjoined” by ensuring “an ordinary person

. . . should be able to ascertain

from the document itself exactly what conduct is proscribed” (quoting 11A C HARLES

A LAN W RIGHT

, A RTHUR R. M ILLER & M ARY K AY K ANE

, F EDERAL P RACTICE AND

P ROCEDURE § 2955 (1995))); see also Fed. R. Civ. P. 65(d) (“Every order granting an

injunction and every restraining order must: (A) state the reasons why it issued; (B) state

its terms specifically; and (C) describe in reasonable detail

— and not by referring to the

complaint or other document

— the act or acts restrained or required.”).

(continued...)

-5 1- 7658The State argues that the order satisfies Civil Rule 65(d)’s specificity

requirements by drawing comparisons to an Idaho federal district court opinion

— Idaho

Conservation League v. Atlanta Gold Corp

. 106 The State argues that, similar to Idaho

Conservation League

, the court properly ordered Williams “into compliance

. . . without

directing every step

. . . because the duration of the contamination is indefinite and

Williams’[s] violations are longstanding and serious.” 107 The State next argues that the

“site clean-up rules

— which the judgment refers to

— are specific enough to put

Williams on notice of what it must do,” 108 a fact demonstrated after the judgment when

“Williams managed to twice submit

— and gain approval of

— monitoring and

characterization plans.” Third, the State argues that the cases upon which Williams relies

in labelling the injunction as an “obey the law” injunction are distinguishable. Finally,

the State disregards Williams’s concerns over the injunction’s geographically and

temporally unlimited reach because the sulfolane plume is similarly unlimited. Williams

replies that the State fails to show that “the injunction meets Rule 65(d)’s specificity

requirements” and that the distinctions between the cases Williams cites and the facts at

105 (...continued)

Williams does not specifically challenge paragraph 3(e)(ii) of the judgment.

To the extent paragraph 3(e)(ii) is distinct from paragraph 3(d)

— both require PFAS

cleanup but the latter requires PFAS “characterization, monitoring, reporting [and]

containment” at the refinery

— we consider any argument against it insufficiently briefed

and therefore waived.

106 879 F. Supp. 2d 1148 (D. Idaho 2012) (upholding as proper under Federal

Rule of Civil Procedure 65(d) trial court’s injunction directing defendants to comply with

existing Clean Water Act permits without more specificity because parties, not court, are

better placed to determine exact method of compliance).

107 Cf. id. at 1164.

108 See 18 AAC 75.325-.390 (describing in detail site cleanup rules and site

characterization plans).

-5 2- 7658issue are immaterial.

We agree that the injunctive relief did not satisfy Civil Rule 65(d)’s

specificity requirements. Rule 65(d) requires that injunctions “describe in reasonable

detail, and not by reference to the complaint or other document, the act or acts sought to

be restrained.” The paragraphs of the judgment that Williams challenges

— paragraphs

3(d), 3(e)(i), and 3(e)(iii) — do not describe on their own, with reasonable specificity,

the remediation and cleanup efforts Williams will need to undertake. The court’s

accompanying Memorandum of Decision includes more specificity, but the parties do

not discuss whether it is specific enough to satisfy Rule 65(d) or whether mere reference

to the Memorandum of Decision satisfies Rule 65(d). We remand the judgment for

injunctive relief for more clarity and to explicitly incorporate

— not by reference

— the

language from the Memorandum of Decision, statutes, administrative code, and other

documents to which the superior court refers.

b. Challenges to the declaratory relief

Williams next challenges the superior court’s declaratory orders on PFAS

at paragraph 3(a) of the court’s final judgment. Williams argues that the court

improperly declared Williams liable for PFAS generally when only PFOS and PFOA

were ever mentioned at trial; that “the State and Flint Hills only presented evidence that

Williams used a product that included PFOS,” and that Flint Hills should shoulder some

of the blame for PFAS. 109

109 As it did with respect to the injunctive relief discussed above, Williams

argues that the declaratory relief for PFAS improperly extends into the future. Because

the court’s o rder holds Williams liable for future costs related to the PFAS it released

prior to the trial date, this portion of the court-awarded relief is sufficiently specific and

does not improperly extend into the future.

Williams also argues that the “declaratory relief in favor of Flint Hills

. . . (continued...)

-5 3- 7658As Williams acknowledges, “ ‘PFAS’ is not a single substance, but an

umbrella term referring to a diverse category of man-made chemicals,” including PFOS,

PFOA, and more. 110 At trial, Williams representative Randy Newcomer testified that

between 1991 and 2000 Williams used only one company’s brand of aqueous foams in

its fire response practices, and he agreed that the foams contained “perfluoroalkyl

substances” including

— but not necessarily limited to

— PFOS. Dr. Wu also testified

that the company’s foams marketed and sold during that time listed “organic

fluorochemicals” as an ingredient, another phrase for the “PFAS class of compounds,”

including “PFOS and PFOA.” In addition, Williams admitted that “releases of

. . .

perfluorochemicals occurred” during its tenure at the refinery. There was also

contemporary evidence of PFAS contamination more broadly, not just PFOS, in the soil

and groundwater at the refinery. Though Williams points to evidence suggesting that

Flint Hills could have used PFAS during its tenure at the refinery, Williams fails to

109 (...continued)

already was rejected because Flint Hills had an adequate remedy at law.” For support,

Williams cites a 2017 pretrial order dismissing Flint Hills’s “claims for declaratory

judgment and specific performance” against Williams as barred by res judicata in light

of Flint Hills I , 377 P.3d 959 (Alaska 2016). But the declaratory relief sought in Flint

Hills I concerned sulfolane rather than PFAS, did not involve State claims, and was

dependent on the availability of other legal remedies. Id. at 973-74. Williams does not

explain how these important differences would justify barring declaratory relief based

on res judicata and we see no reversible error on this issue. See Patterson v. Infinity Ins.

Co.

, 303 P.3d 493, 497 (Alaska 2013) (“A judgment is given res judicata effect by this

court when it is (1) a final judgment on the merits, (2) from a court of competent

jurisdiction, (3) in a dispute between the same parties (or their privies) about the same

cause of action.” (quoting Angleton v. Cox

, 238 P.3d 610, 614 (Alaska 2010))).

110 See supra note 1 (defining PFAS).

-5 4- 7658identify any evidence that Flint Hills actually did use PFAS-containing products. 111

Because the record shows that Williams released PFAS during its tenure,

the burden was on Williams to prove that it did not use particular PFAS chemicals or to

establish that another entity was also liable. 112 The superior court did not err when it

declared that no evidence was presented demonstrating Flint Hills used PFAS during its

111 Williams does not raise the argument that Flint Hills should be liable under

AS 46.03.822 for PFAS contamination due to its status as current owner of the facility

from where PFAS was released. See AS 46.03.822(a)(2), .826(9) (assigning liability to

owner of facility from which hazardous substance is released and defining “release”

broadly such that PFAS “leaching” from the refinery could fall within definition); see

also AS 46.03.822(c) (maintaining liability for refinery owners that purchased property

with knowledge of earlier releases of hazardous substance).

On appeal, Williams points to several sections of the record purporting to

show that “Flint Hills used substantial amounts of ‘PFAS’ in fire-training exercises and

‘hot work’ at the refinery.” Some of that “evidence” consists of Williams’s own

proposed findings of fact and testimony from some of its own witnesses speculating

about the source of PFAS detections that occurred “upgradient” (i.e., in the opposite

direction of water seepage) of firefighting areas. Williams also cites a 2018 DEC report

detailing PFAS sampling at the refinery that indicates Flint Hills purchased firefighting

foams, but not that those foams contained PFAS. Williams additionally points us to a

lengthy 2013 environmental report without explaining its relevance, but that report was

excluded from trial on hearsay grounds and, in any event, it suggests Flint Hills

purchased foams without PFOS or PFOA.

To the extent there may have been evidence tying Flint Hills to PFAS

contamination at the refinery, we consider the argument waived for insufficient briefing

and failure to cite relevant evidence in the record. See Casciola v. F.S. Air Service, Inc.

, 120 P.3d 1059, 1062-63 (Alaska 2005); Alaska R. App. P. 212(c)(1)(H).

112 See AS 46.03.822; Oakly Enters., LLC v. NPI, LLC

, 354 P.3d 1073, 1079­

80 (Alaska 2015) (“The burden of proof is on the party seeking to avoid joint and several

liability

. . . .”). Williams had access to the list of PFAS present in the soil and

groundwater at the refinery, and does not identify any place in the record where it

challenged or otherwise indicated it would challenge its liability for specific PFAS.

-5 5- 7658time at the refinery, and that Flint Hills was not a responsible party under AS 46.03.822

for PFAS contamination.

5. Williams’s right to due process was not violated.

Williams argues that DEC’s enforcement a ction and the superior court’s

finding of liability under section .822 and subsection .826(5)(a) violated the Due Process

Clause of the U.S. Constitution 113 and article I, section 7 of the Alaska Constitution 114

because Williams did not have “fair notice” that its conduct was prohibited.

Williams implies that the hazardous substance statutes and regulations are

too vague to make it clear whether sulfolane fell within the definition and whether

Williams could be liable for its release. Williams claims it relied on agency statements

to understand its responsibility. Williams specifically contends that “DEC told Williams

that sulfolane was not a hazardous substance and not regulated” and that DEC actually

“allowed sulfolane to stay in the ground.” As a result it claims that “DEC’s actions and

communications g ave Williams n o notice that i ts conduct c reated a substantial risk of

actual harm.” Williams also claims that the superior court’s “eve-of-trial interpretation”

of the terms “hazardous substance” and “imminent and substantial danger” violated the

principles of fair notice because they were a “reversal” of DEC’s initial position and a

prior superior court decision in the case.

Due process requires that a party be given fair notice before it can be

113 “No person shall be

. . . deprived of life, liberty, or property, without due

process of law.” U.S. Const. amend. V.

114 “No person shall be deprived of life, liberty, or property, without due

process of law. The right of all persons to fair and just treatment in the course of

legislative and executive investigations shall not be infringed.” Alaska Const. art. I, § 7.

-5 6- 7658subjected to liability, 115 at least with regard to “criminal or serious civil penalties.” 116

Williams’s potential multi-million dollar liability and remediation duties qualify as

“serious civil penalties.” 117 Whether the constitutional requirements of due process were

met is a legal question that we review de novo, 118 but factual determinations such as

those regarding the meaning of DEC’s communications are reviewed for clear error. 119

Fair notice is a principle of “basic fairness” which requires that “a statute

115 See State, Dep’t of Revenue v. Nabors Int’l Fin., Inc.

, 514 P.3d 893, 899

(Alaska 2022) (explaining that lack of fair notice, such as through statutory vagueness,

“violates the first essential of due process of law” (quoting Halliburton Energy Servs. v.

State, Dep’t of Lab., Div. of Lab. Standards & Safety, Occupational Safety & Health

Section

, 2 P.3d 41, 51 (Alaska 2000))).

116 VECO Int’l, Inc. v. Alaska Pub. Offs. Comm’n

, 753 P.2d 703, 714 (Alaska

1988).

117 See id. at 706 (civil penalty of $72,600 imposed for alleged violations of

Alaska Campaign Disclosure Act considered “serious civil penalty”). The State argues

that this case does not require fair notice because the hazardous substance statute

operates remedially to impose “compensatory liability” rather than “civil or criminal

punishment .” We agree that sections .760, .780, and .822 are not intended to “punish”

but rather to compensate for environmental damage. See AS 46.03.760(b) (requiring that

civil assessments be “compensatory and remedial in nature” rather than punitive). But

a “penalty” can be narrowly or broadly defined. See Penalty

, B LACK ’ S L AW D ICTIONARY

(11th ed. 2019) (first describing a penalty as “[p]unishment imposed

. . . for either a

wrong to the state or a civil wrong (as distinguished from compensation for the injured

party’s loss)” but then broadly defining civil penalty as “fine assessed for a violation of

a statute or regulation”). We assume without deciding that the large statutory

assessments awarded against Williams may be considered “penalties” to which fair

notice requirements apply.

118 See Nabors Int’l Fin., Inc.

, 514 P.3d at 898.

119 Burton v. Fountainhead Dev., Inc.

, 393 P.3d 387, 392 (Alaska 2017).

-5 7- 7658. . . give adequate notice to the ordinary citizen of what is prohibited.” 120 In other words,

a statute must not be so vague that people cannot know what they must do or are

prohibited from doing. We have explained that even if a statute might in some contexts

be too vague to give adequate notice, it “may still pass muster if: (a) there can be no

question as to its applicability to the particular offense involved, and (b) a construction

may be placed upon the statute so that in the future the type of offenses coming within

its purview may reasonably be understood.” 121 The regulation of economic activity

—

such as through antipollution statutes

— typically survives a vagueness challenge as long

as there is “legislative language which is not so conflicting and confused that it cannot

be given meaning in the adjudication process.” 122

In Stock v. State we analyzed whether the broad antipollution provision in

AS 46.03.710 was void for vagueness. 123 Section .710 states that “[a] person may not

pollute or add to the pollution of the air, land, subsurface land, or water of the state.”

“Pollution” in turn is defined as

the contamination or altering of waters, land or subsurface

land of the state in a manner which creates a nuisance or

120 Stock v. State

, 526 P.2d 3, 8 (Alaska 1974); see also F.C.C. v. Fox

Television Stations, Inc.

, 567 U.S. 239, 253 (2012) (“A fundamental principle in our

legal system is that laws which regulate persons or entities must give fair notice of

conduct that is forbidden or required.”).

121 Stock

, 526 P.2d at 8 (internal citations omitted).

122 Lazy Mountain Land Club v. Matanuska-Susitna Borough Bd. of

Adjustment & Appeals

, 904 P.2d 373, 383 (Alaska 1995) (quoting Williams v. State,

Dep’t of Revenue

, 895 P.2d 99, 105 (Alaska 1995)); see also id. (explaining civil

penalties and economic regulation are “subject to a less strict vagueness test” than, for

instance, speech (quoting Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc.

, 455 U.S.

489, 498-99 (1982))).

123 526 P.2d at 7-13.

-5 8- 7658makes waters, land or subsurface land unclean, or noxious, or

impure, or unfit so that they are actually or potentially

harmful or detrimental or injurious to public health, safety or

welfare, to domestic, commercial, industrial, or recreational

use, or to livestock, wild animals, bird, fish, or other aquatic

life. [ 124 ]

We acknowledged there might be borderline or de minimis cases when the application

of the statute might be unclear, but we refused to analyze the statute in so abstract a

manner to determine if it was void for vagueness. 125 Instead, we looked specifically at

the act for which Stock was convicted: discharging raw sewage into a stream running

through residential areas. 126 This act obviously fell within the statutory definition of

“pollution”; even Stock’s counsel admitted that a reasonable person would know this. 127

We acknowledged that the term “potentially harmful” in the definition of “pollution”

might be vague enough to require a narrowing construction, and we added an element

requiring foreseeability which would be used in future applications. 128 But we affirmed

the superior court’s finding that Stock had violated the provision because Stock’s

124 AS 46.03.900(20) (formerly AS 46.03.900(15)).

125 Stock

, 526 P.2d at 9-10 (“Courts have often recognized that the possibility

of difficult or borderline cases will not invalidate a statute where there is a hard core of

cases to which the ordinary person would doubtlessly know the statute unquestionably

applies.”).

126 Id. at 10.

127 Id. at 9-11.

128 Id. at 9-10. We determined that “the statute prohibits acts which a

reasonable person would foresee as creating a substantial risk of making water actually

injurious to the statutorily protected interests.” Id. at 10.

-5 9- 7658conduct so clearly fell within the “hard core” of prohibited conduct. 129 Additionally, we

explained that the need for environmental protection, the increasing number of laws and

regulations governing disposal of substances used during commercial activity, and the

need for the legislature to make broad statutes to balance economic growth with

environmental protection all supported our conclusion that the antipollution provisions

at issue were not unconstitutionally vague on their face and that S tock was clearly on

notice that discharging raw sewage into waterways was improper. 130

In Williams’s case, it is possible that the hazardous substance provisions

of section .822 and the statutory definition of hazardous substances in subsection .826(5)

could be vague in some instances. But the superior court’s findings about sulfolane lead

us to conclude sulfolane falls within the “hard core” of the definition of hazardous

substance. And Williams itself treated sulfolane as hazardous. Furthermore, Williams

may have been allowed to use sulfolane, but it knew that it was not permitted to simply

dispose of the substance in any manner it wished. These facts indicate that Williams was

on notice of the potential for liability under a gamut of antipollution statutes, including

those related to hazardous substances. We conclude that the statute is not so

impermissibly vague that it violates Williams’s right to due process.

We also disagree that DEC’s communications or actions prior to litigation

resulted in a lack of fair notice to Williams. 131 DEC’s failure to pursue an enforcement

129 Id. at 9-10.

130 Id. at 12-13.

131 The superior court rejected this argument in Williams’s cross-motion for

summary judgment because it determined that fair notice would be required only when

an agency “depart[ed] from its long-established regulations or adjudications.” But fair

notice requirements apply even when there have not been regulations or adjudications

(continued...)

-6 0- 7658action with regard to sulfolane was not “acquiescence” 132 to or approval of Williams’s

conduct. In its communications with Williams, DEC acknowledged that sulfolane was

not then regulated as a hazardous substance because very little was known about it and

there was a “lack of EPA reviewed toxicity data,” and DEC said it first needed to gather

more information regarding sulfolane and the pollution issuing from the refinery. It

required Williams to conduct further monitoring and stated that it would follow up with

further clarification or action. Though Williams claims DEC’s communications

constituted “written determinations” that sulfolane did not pose a hazard, DEC

communicated that sulfolane was not regulated at the time, not that it had ultimately

concluded it was not hazardous. We conclude the superior court did not clearly err when

it found DEC had not promulgated prior interpretations about sulfolane in legal briefs,

regulations, or adjudications that Williams might have relied on to claim sulfolane was

not hazardous. 133

131 (...continued)

on point. The U.S. Supreme Court has recognized that while agencies have enforcement

discretion and interpretive latitude, if the statutory interpretations are unreasonable or if

the conspicuous inaction appears to be for no reason other than acquiescence, “the

potential for unfair surprise is acute.” Christopher v. SmithKline Beecham Corp. , 567

U.S. 142, 158 (2012). Agency actions beyond regulations and adjudications serve to

inform regulated entities and therefore are relevant to the fair notice inquiry. However,

as we discuss below, DEC did not cause Williams unfair surprise.

132 See id. (recognizing many reasons for agency lack of enforcement and

finding lack of fair notice where only possible reason was acquiescence).

133 The cases Williams cites as support for its argument are distinguishable on

several grounds, including their stricter CERCLA context that requires the listing of

substances EPA deems hazardous (whereas AS 46.03.822 does not), and their

conclusions that notice was lacking only when the court found the statute ambiguous and

official agency interpretations or guidance were conflicting. See Massachusetts v. (continued...)

-6 1- 7658Agencies are free to create and change policies for matters within their

purview, as DEC did when it decided to regulate sulfolane and treat Williams as a

responsible party. An agency should indicate that it is changing its position and

demonstrate good reasons for such a change, but it does not need to “provide detailed

justifications for every change” and it is not the court’s role to ask whether the chosen

policy is better or best

— only whether it conforms to reason. 134 Based on the evidence

presented at trial, the superior court concluded that DEC reasonably determined sulfolane

to be a “hazardous substance” and that unpermitted disposal was a violation of the

antipollution provisions of Title 46, Chapter 3. We see no error with that conclusion.

Williams also argues that the superior court’s own rulings deprived it of due

process because the court promulgated an “eve-of-trial interpretation of ‘hazardous

substance’ ” and “imminent and substantial danger” under section .822 and subsection

.826(5) that contradicted “both the DEC position on sulfolane during 2001-2003

. . . and

the intervening decision of the same court.” Williams does not cite case law to support

its claim, does not specify exactly how the superior court acted unlawfully, and does not

indicate how it was prejudiced. We consider arguments that are given cursory treatment

133 (...continued)

Blackstone Valley Elec. Co.

, 67 F.3d 981, 988, 993 (1st Cir. 1995) (denying, as violation

of fair notice, summary judgment to EPA in enforcement action based on EPA’s

categorization of ferric ferrocyanide as “ cyanide” under CERCLA, because unclear if

regulatory background indicated it should be so categorized and because EPA took

inconsistent official positions on categorization); Rollins Env’t Servs. (NJ) Inc. v. U.S.

E.P.A.

, 937 F.2d 649, 654 (D.C. Cir. 1991) (concluding it would violate requirements

of fair notice to impose penalty on company because statute was ambiguous and EPA

gave conflicting advice to private parties about how to comply with statute).

134 F.C.C. v. Fox Television Stations, Inc.

, 567 U.S. 239, 250 (2012).

-6 2- 7658without any support to be waived. 135 And we do not see how the superior court carrying

out its obligation to interpret the relevant statute

— issuing rulings on a matter of law that

was consistently contested throughout the proceedings

— could have worked unfair

surprise on Williams or violated its right to fair notice. 136

6.	 Imposing civil liability for past releases was not an

unconstitutional taking.

Williams argues that the superior court’s interpretation of

AS 46.03.826(5)(A) is an unconstitutional regulatory or judicial taking under the U.S.

and Alaska Constitutions. 137 Williams argues the judgment imposes severe,

unforeseeable retroactive liability, which it could not have anticipated because the

superior court’s interpretation of the relevant statutes was a “change in law.” Because

this imposition of liability is linked to an identified property interest and it was

accomplished for a public purpose, Williams argues it constitutes a compensable taking.

Williams’s argument fails because it continuously characterizes the superior

court’s interpretation as a “change in the law,” when it is not. Williams merely disagrees

with the interpretation and the factual basis for concluding sulfolane is hazardous.

135 See Hagen v. Strobel

, 353 P.3d 799, 805 (Alaska 2015). Furthermore,

“eve-of-trial” is a misleading portrayal o f the court’s actions. The court i nformed the

parties eleven days before trial and approximately five weeks before the close of trial

how it planned to interpret the statute. Trial courts are under no obligation to issue such

memoranda about tentative interpretations of the law ahead of trial, and doing so could

only have assisted Williams in preparing its case.

136 See Christopher

, 567 U.S. at 161 (explaining court’s role in conducting

statutory interpretation when agency adopts interpretation of statute that does not deserve

deference).

137 “[N]or shall private property be taken for public use, without just

compensation.” U.S. Const. amend. V. “Private property shall not be taken or damaged

for public use without just compensation.” Alaska Const. art. I, § 18.

-6 3- 7658Similarly, Williams mischaracterizes DEC’s communications as having previously

“expressly advised Williams that sulfolane was not a concern” but now determining it

to be a hazardous substance. As discussed above, the superior court made factual

findings that DEC never expressly authorized the releases, and these findings are not

clearly erroneous. 138 Finally we note that Williams’s irresponsible waste management

and sulfolane releases are not conduct linked to “reasonable investment-backed

expectations” that takings jurisprudence seeks to protect. 139

B.	 Flint Hills’s Contractual Indemnification And Statutory Contribution

Claims Against Williams

Flint Hills sought indemnification from Williams under the terms of the

Purchase Agreement for the remediation and litigation costs associated with the offsite

sulfolane. 140 Flint Hills also sought statutory contribution from Williams for those

138 Because there was no “change in law” and no retroactive liability imposed

here, we need not reach the arguments of Williams and the State concerning whether

retroactive liability under the hazardous substance statute effects an unconstitutional

taking.

139 State, Dept. of Nat. Res. v. Arctic Slope Reg’l Corp.

, 834 P.2d 134, 139

(Alaska 1991) (quoting Ruckelshaus v. Monsanto Co.

, 467 U.S. 986, 1005 (1984))

(explaining that DNR’s use of proprietary information from oil companies did not upset

reasonable investment-backed expectations because it did not affect company’s actions

or investments); see Penn Cent. Transp. Co. v. City of New York

, 438 U.S. 104, 124

(1978); see also Arctic Slope

, 834 P.2d at 140-45 (further finding no unfair surprise

given statute authorizing DNR use and concluding regulatory statute was legitimate use

of state’s police power for public welfare).

140 We again note that the hazardous substance statute holds i neffective any

“indemnification, hold harmless, or similar agreement

. . . to transfer liability.

. . from the

owner or operator of a facility.” AS 46.03.822(g). But the statute also allows for

indemnification and hold harmless agreements between liable parties to shift financial

responsibility. Id.

-6 4- 7658costs. 141 The superior court determined that the Purchase Agreement terms barred Flint

Hills’s claim for indemnification because it had contributed to the sulfolane pollution,

but that Flint Hills could seek contribution pursuant to AS 46.03.822(j).

Williams disputes the superior court’s interpretation of the Purchase

Agreement. It first argues that Flint Hills assumed responsibility for the offsite sulfolane.

Williams also contends that the Purchase Agreement’s indemnification provision is the

sole remedy available to Flint Hills and therefore the superior court erred by allowing

statutory contribution. Williams also argues that any award against it

— whether

through indemnity or contribution

— is subject to the Environmental Cap negotiated in

the Purchase Agreement. Because the superior court did not err when it interpreted the

parties’ allocation of liabilities and the remedies in the Purchase Agreement, we affirm

the court’s determinations regarding Flint Hills’s claims against Williams.

1.	 Overview of the Purchase Agreement’s indemnification and

remedies provisions

Article X 142 of the Purchase Agreement contains detailed provisions

regarding financial liability between the parties for litigation or damages incurred

following the purchase. Article X cross-references Section 10.2(a)(iv) of the “Disclosure

Schedule” appended to the Purchase Agreement. That section of the Disclosure

Schedule, entitled “Known Environmental Matters,” begins with a sentence fragment

stating, “Any and all costs of clean-up, monitoring, corrective actions and compliance

141 AS 46.03.822(j) enables liable parties to “seek contribution from any other

person who is liable under (a) of this section.” To resolve a claim for contribution, “the

court may allocate damages and costs among liable parties using equitable factors

determined to be appropriate by the court.”

142 The Purchase Agreement refers to articles using Roman numerals but

sections within using ordinary Arabic numerals. Thus it refers to the article as “Article

X,” but sections within the Article as “Section 10.2,” for example.

-6 5- 7658with regulations incurred after the Effective Time with respect to contamination

specifically identified in the referenced figures, tables and text described below.” The

following sentence adds detail, stating that “Buyer has agreed to assume full

responsibility for all existing, known contamination at the Real Property specifically

identified in the referenced figures, tables and text described below.” The Disclosure

Schedule also provides that

Buyer understands and acknowledges that the levels of

Hazardous Materials measured in monitoring wells and

contained in the figures, tables, and text below will vary over

time, and that Buyer is responsible for such normal

variations, as well as any changes in such contamination

resulting from Buyer’s actions or omissions after the

Effective Time.

. . . [T]he Buyer further understands that the

data is representative of site conditions and can be used to

support reasonable conclusions about present contaminant

concentrations at the locations sampled and contaminant

contours outside those locations.

Listed in the Disclosure Schedule is a table entitled “Sulfolane Data (July 2001

­

September 2001) for North Pole Refinery.” The table indicates varying concentrations

of sulfolane were detected at monitoring wells located on the refinery property, including

near the property boundaries.

Section 10.2(a)(iii) of the Purchase Agreement states that “Seller shall

indemnify, defend and hold Buyer

. . . harmless, from and against any and all Damages

incurred by [Buyer] in connection with or arising or resulting from .

. . the possession,

ownership, use, or operation of the Assets prior to the Effective Time.” 143 However, that

provision’s general language is qualified by various exceptions. Specifically, that

subsection provides that

143 “Effective Time” refers to the closing date of asset transfer, March 31,

2004.

-6 6- 7658Seller shall have no duty to indemnify under this Section

10.2(a)(iii) (A) with respect to Buyer’s obligations under

Section[]

. . . 10.2(b)(v)(C) [ 144 ] [matters set forth on the

Disclosure Schedule]

. . . , (B) to the extent that Damages are

caused or contributed to by Buyer’s operations, actions or

omissions after the Effective Time and/or (C) with respect to

any Environmental Claim.

The latter type of claim is “covered exclusively by the provisions of Section 10.2(a)(iv).”

Section 10.2(a)(iv), which governs and serves to define “Environmental

Claims,” states that Williams will indemnify Flint Hills for damages arising from a broad

enumerated list “except to the extent that Damages are caused or contributed to by

Buyer’s operations, actions or omissions after the Effective Time.” The matters listed

for which Williams retains responsibility include in relevant part:

(A) any Environmental Condition [ 145 ] existing prior to the

Effective Time, at, on or under or arising, emanating, or flowing from any of the Assets, or from the property

underlying the Real Property, whether known or unknown as

of the Effective Time [including damages to third parties

“arising therefrom.”],

. . . but excluding (i) any and all costs

of cleanup, monitoring, corrective actions and compliance

with regulations incurred after the Effective Time with

respect t o the matters s et forth on Section 10.2(a)(iv) of the

Disclosure Schedule

. . . ;

144 Section 10.2(b) covers indemnification by the Buyer and states that “Buyer

shall indemnify, defend and hold Seller

. . . harmless, from and against any and all

Damages incurred by [Seller] in connection with or arising

. . . from

. . . (v)(C) any and

all costs of cleanup, monitoring, corrective actions and compliance with regulations

incurred after the Effective Time with respect to the matters set forth on

. . . the

Disclosure Schedule.”

145 The Purchase Agreement defines “Environmental Condition” as “any

condition existing on, at or originating from, each property included within the Assets

which constitutes, (a) a Release on, at or from such property of any Hazardous Materials

or (b) a violation of any applicable Environmental Laws or any Environmental Permits.”

-6 7- 7658(B) [damages to third parties] arising out of or related to any

Environmental Condition to the extent (i) not located on the

Assets or the property underlying the Real Property and (ii)

existing prior to the Effective Time;

(C) payment of penalties and fines assessed or imposed by

any Governmental Authority arising out of or related to any

Environmental Condition existing prior to the Effective

Time; and

(D) any Damages that arise , directly or indirectly, from the

Release

, generation, use, presence, storage, treatment and/or

recycling of any Hazardous Materials or Petroleum Products

by Seller or from the possession, use, ownership, or operation

of the Assets prior to the Effective Time

, or by a third party

if any such Hazardous Materials or Petroleum Products were generated or used by Seller

. . . but excluding (i) any and all

costs of cleanup, monitoring, corrective actions or

compliance with regulations incurred after the Effective Time

with respect to the matters set forth on Section 10.2(a)(iv) of

the Disclosure Schedule

. (Emphasis added.)

In an effort to ensure more certainty regarding the extent of future

indemnification obligations, the parties included a damages cap for indemnification, with

a specific Environmental Cap of $32 million. 146 And we previously concluded that the

Cap applies to all environmental liabilities. 147

The parties further agreed that remedies provided in the Purchase

Agreement would be exclusive, with certain exceptions. Section 10.5 of the Agreement

states:

146 Section 10.4(b) provides that “the maximum amount of indemnifiable

Damages which may be recovered by [Buyer] from Seller

. . . and by [Seller] from Buyer

arising out of, resulting from or incident to the matters enumerated in Section 10.2(a) or

Section 10.2(b) shall be the Environmental Cap with respect to any and all

Environmental Claims.”

147 Flint Hills I

, 377 P.3d 959, 976 (Alaska 2016).

-6 8- 7658Except for (a) any equitable relief, including injunctive relief

or specific performance to which any Party hereto

. . . may be

entitled,

. . . the indemnification provisions of this Article X

shall be the sole and exclusive remedy of each Party

. . . with

respect to any and all Actions or Damages arising out of this

Agreement from and after the Closing.

2.	 The superior court did not erroneously conclude that the

Purchase Agreement limited Flint Hills’s liability.

The superior court considered both the language of the contract and

testimony regarding the circumstances of negotiation and determined that Flint Hills had

assumed responsibility only for sulfolane that was known and onsite at the time of

purchase. This meant that Williams had a duty to indemnify Flint Hills for offsite

sulfolane contamination

— though this duty was potentially limited by Flint Hills’s own

actions, the Environmental Cap, and the remedies provisions of the contract.

The superior court noted that the Purchase Agreement’s Disclosure

Schedule was entitled “Known Environmental Matters” and referred to “contamination

specifically identified” in the Disclosure Schedule. The court also noted that the

Disclosure Schedule provided that Flint Hills would be fully responsible for “[a]ny and

all costs of

. . . corrective actions and compliance with regulations incurred” after the sale

for “all existing, known contamination at the Real Property,” which was specifically

identified in the Disclosure Schedule. The court found that “ at the Real Property”

supported the interpretation that Flint Hills assumed solely onsite contamination.

(Emphasis added.) The court added that the studies listed in the Disclosure Schedule

“did not identify contamination that was not ‘at’ the Refinery property

— i.e., outside the

Real Property’s boundaries.”

The superior court also analyzed the language in Section 10.2(a)(iv)(A),

which referred to liabilities that Williams retained for “any Environmental Condition

. . .

at, on or under or arising, emanating, or flowing from any of the Assets, or from the

-6 9- 7658property underlying the Real Property,” excluding the conditions on the Disclosure

Schedule. The court contrasted this subsection’s language with that of 10.2(a)(iv)(B),

which referenced Williams’s retained liability for harms arising from an Environmental

Condition “(i) not located on the Assets or the property underlying the Real

Property

. . . .” The court concluded that the onsite and offsite specifications meant

subsection (A) referred solely to onsite contamination, and by extension, so did the

Disclosure Schedule. Therefore, the court concluded that Williams retained liability for

sulfolane contamination existing offsite at the time of the asset transfer, even if that

contamination was caused by migration of a pollutant that had originated onsite and was

disclosed in the Schedule.

Additionally, the superior court relied on trial testimony to clarify the

assumption-of-liabilities issue. Representatives of both parties described an “our

watch/your watch” approach where each party would retain responsibility for issues

caused during their operations, with the very narrow exceptions enumerated in the

Disclosure Schedule. Witnesses for both parties agreed that the Disclosure Schedule did

not explicitly refer to offsite contamination, and the court concluded that the intent of the

parties was that Flint Hills would assume liability for the sulfolane located onsite at the

time of purchase.

Williams argues that the court misconstrued the plain language of the

Agreement when it concluded that Flint Hills had not assumed liability for offsite

sulfolane. First, Williams claims the court incorrectly concluded that the contract

distinguished onsite/offsite sulfolane and that Section 10.2(a)(iv)(A) excluded offsite

matters. Williams a rgues that subsection (A) in fact applies to both onsite and offsite

conditions, because it refers to conditions “at, on or under or arising, emanating, or

flowing from any of the Assets or from the property.” It argues that “arising, emanating,

or flowing from” would be superfluous if it related solely to onsite conditions, which

-7 0- 7658would have been properly encapsulated by “at, on or under.” Similarly, Williams points

to the broad definition of “Environmental Condition” in the contract

— “any condition

existing on, at or originating from

, each property”

— to support its contention that a

disclosed substance might migrate offsite yet remain part of Flint Hills’s assumed

responsibilities. Second, Williams argues that the superior court erred by relying on

extrinsic evidence to assist with the interpretation of the Purchase Agreement. Williams

claims that reference to extrinsic evidence violated Texas contract law governing the

agreement.

We conclude that the superior court’s inferences about the parties’ intent,

based on extrinsic evidence, were supported by substantial evidence. We further

conclude, from these inferences and from our de novo review of the contract language,

that the superior court did not err by determining Williams retained liability for offsite

sulfolane.

3. The superior court did not err by concluding Williams retained

responsibility for offsite sulfolane

.

We apply Texas law to the interpretation of the Purchase Agreement; the

parties chose Texas law to govern the Agreement and neither party disputes its

application here. 148

148 See, e.g.

, Jarvis v. Aetna Cas. & Sur. Co.

, 633 P.2d 1359, 1363 n.5 (Alaska

1981) (declining to disturb parties’ choice of law); see also In re Newport Plaza Assocs.,

L.P.

, 985 F.2d 640, 644 (1st Cir. 1993) (“When opposing parties agree to the source of

the substantive law that controls their rights and obligations, and no jurisdictional

concerns are present, a court is at liberty to accept such an agreement without

independent inquiry.”); Schiavone Constr. Co. v. Time, Inc.

, 847 F.2d 1069, 1076 n.3 (3d

Cir. 1988) (permitting parties and lower courts’ consent as to choice of law to control

when there is no reason to disturb that agreement); Tidler v. Eli Lilly & Co.

, 851 F.2d

418, 421 (D.C. Cir. 1988) (allowing court to assume choice of law was correct since

neither party raised the issue).

(continued...)

-7 1- 7658The language in the Purchase Agreement is ambiguous. On one hand, its

definition of Environmental Condition and the language about such conditions in Section

10.2’s indemnification provisions appear to be extremely broad; they could therefore

apply to both onsite and offsite pollution. The carve-out for sulfolane in the Disclosure

Schedule would, by extension, include sulfolane pollution that had migrated offsite prior

to the purchase date. On the other hand, the breadth of Section 10.2(a) might apply only

to Williams’s retained liabilities, while Flint Hills’s assumed liabilities are instead

narrowly tailored to those “matters set forth” in the Disclosure Schedule only for

conditions “at” the property. In that case, Williams’s reference to the broad definition

of “Environmental Condition” and the language of “arising, emanating, or flowing from”

would not apply to Flint Hills’s assumed responsibilities. Indeed, the Disclosure

Schedule refers to the matters set forth therein as “ contamination ” and not

“Environmental Conditions,” possibly supporting this narrower construction. (Emphasis

added.) In other words, assuming responsibility for “existing, known contamination at

the Real Property” would not necessarily include assuming responsibility for the effects

arising or emanating from such contamination off the real property.

Because the contract language is ambiguous, it was proper for the superior

court to resort to extrinsic evidence. Though Texas law places greater restrictions on the

148 (...continued)

We see no obvious reason that applying Texas law to this case would

conflict with Alaska’s choice of law approach, which follows the Second Restatement

of Conflicts. See Peterson v. Ek

, 93 P.3d 458, 464 n.11 (Alaska 2004). As we discuss

below, it is unlikely that the resulting interpretations would differ under either Alaska’s

or Texas’s interpretive approach, as both would admit the extrinsic evidence which

informed the superior court’s decision. See Tidler

, 851 F.2d at 421 (permitting analysis

of claims under laws of two states).

-7 2- 7658admission of extrinsic evidence than Alaska law, 149 a court can use extrinsic evidence to

resolve patent and latent ambiguities as long as those ambiguities are present in the

text. 150 In other words, Texas law “does not prohibit consideration of surrounding

149 Under Alaska contract principles, the court’s duty is to “ascertain and give

effect to the reasonable intentions of the contracting parties.” Flint Hills I

, 377 P.3d at

975 (quoting Est. of Polushkin ex rel. Polushkin v. Maw

, 170 P.3d 162, 167 (Alaska

2007)). The court need not initially determine that the disputed language is ambiguous

to consider extrinsic evidence; instead, the court can look holistically at the disputed

language, other language in the contract, relevant extrinsic evidence, and case law

interpreting similar provisions. Id. ; see also Nautilus Marine Enters., Inc. v. Exxon

Mobil Corp.

, 305 P.3d 309, 316 (Alaska 2013) (“We have expressly rejected the

‘artificial and unduly cumbersome’ two-step process used in other jurisdictions in which

‘resort to extrinsic evidence can take place only after a preliminary finding of

ambiguity.’ ” (quoting Alyeska Pipeline Serv. Co. v. O’Kelley

, 645 P.2d 767, 771 n.1

(Alaska 1982))). But extrinsic evidence cannot be used to add or contradict contract

terms. See Froines v. Valdez Fisheries Dev. Ass’n

, 75 P.3d 83, 87 (Alaska 2003).

Texas law is more restrictive. It indicates that a court’s “primary objective

is to ascertain and give effect to the parties’ intent as expressed in the instrument .” URI,

Inc. v. Kleberg Cnty.

, 543 S.W.3d 755, 763 (Tex. 2018) (emphasis added). “Objective

manifestations of intent control,” and therefore courts should interpret language

according to its “ ‘plain, ordinary, and generally accepted meaning’ unless the instrument

directs otherwise.” Id. at 763-64 (quoting Heritage Res., Inc. v. NationsBank

, 939

S.W.2d 118, 121 (Tex. 1996)). However, the Texas Supreme Court has explained that

the meaning of words often “turns upon use, adaptation and context.” Id. at 764 (quoting

Heritage Res., Inc. , 939 S.W.2d at 121). This context is not just gleaned from the

language and structure of the contract itself, but also from the “circumstances present

when the contract was entered.” Id. (quoting Columbia Gas Transmission Corp. v. New

Ulm Gas, Ltd.

, 940 S.W.2d 587, 589 (Tex. 1996)). Thus, while a court cannot look to

extrinsic evidence to add or modify contract terms

— i.e., to introduce solely subjective

intent that has not been manifested objectively in the contract

— it can use extrinsic

evidence where the contract language is inherently ambiguous. Id.

150 URI, Inc.

, 543 S.W.3d at 764-65.

-7 3- 7658circumstances that inform, rather than vary from or contradict, the contract text.” 151 As

we discuss below, we conclude that the superior court adhered to Texas contract law’s

requirements when it used extrinsic evidence to resolve the ambiguities of Article X.

Flint Hills Resources’ Alaska President Allen Lasater testified that, based

on his understanding of the parties’ intent at the time of contracting, Flint Hills did not

assume responsibility for offsite contamination. He stated that there was no offsite

sulfolane contamination then “known” and thus it was not included in the Disclosure

Schedule. Lasater essentially equated unknown to undisclosed, and therefore liability

for those unknowns “remained with Williams.” He explained that this was a logical

intent because Flint Hills needed to know the extent of pollution in order to agree to

continue running the refinery’s pollution remediation system consistent with DEC’s

compliance orders.

Williams representative Randy Newcomer qualified references to known

conditions as “known conditions which were primarily onsite .” (Emphasis added.) He

stated that Flint Hills took responsibility for “known cleanup” of “known contaminants”

as described in the Disclosure Schedule as of the Effective Date, after which Flint Hills

was responsible for additional pollution occurring on- and offsite during their ownership.

Williams thus remained responsible for the unknown conditions offsite “caused

. . . by

Williams during its ownership.” Upon further questioning, Newcomer stated that there

was a “your watch/my watch kind of

. . . thing” specifically for offsite contaminants. He

explained that if a known contaminant offsite caused damage before the Effective Date,

Williams would take responsibility, but “[i]f it was something that Flint Hills caused

during their ownership of the [r]efinery,” then Flint Hills assumed responsibility.

Newcomer admitted that, as he understood the contract, Williams would be obligated to

151 Id. at 767 (quoting Hous. Expl. Co. v. Wellington Underwriting Agencies,

Ltd.

, 352 S.W.3d 462, 469 (Tex. 2011)).

- 74- 7658indemnify Flint Hills for the portion of sulfolane that had migrated off the property when

Williams owned the refinery. But he said that further migration or contamination offsite

after the Effective Date would be the responsibility of Flint Hills. On cross-examination,

Newcomer emphasized that liabilities were defined by their known/unknown status

rather than onsite/offsite.

The Williams Companies Senior Vice President Phillip Wright, who was

involved in the refinery sale negotiations, similarly testified that “as a general matter, we

agreed to a your watch/our watch type principle

. . . in which if the cause for a given

contamination was generated while we were the owner and operator of the Refinery, we

would be liable for those damages

. . . and they would retain liability for anything

generated on their watch which was during their ownership and operation of the

Refinery.” But he specifically stated that “those damages” Williams retained

responsibility for would not “include the cleanup costs associated with migration of

known characterized contamination.” He testified that it was Williams’s intent,

expressed through the language of the contract, that if the sulfolane migrated off the

property, it was Flint Hills’s responsibility. He further added that “[i]t wouldn’t have

been possible for [Flint Hills] to assume” the sulfolane “would be retained on site

. . .

because it was [in] the groundwater” and not in a “vessel.” He stated that Williams

representatives “assumed we were dealing with a sophisticated player that understood

these matters and understood groundwater hydrology.”

Testimony from representatives of both parties presented competing

interpretations of the contract. Ultimately, the determination of the parties’ intentions

and representations during negotiations are issues of fact properly within the province

of the superior court. The court did not clearly err when it concluded as a factual matter

that the parties intended for Williams to retain responsibility for its portion of offsite

sulfolane, and for Flint Hills to assume liability only for sulfolane contamination onsite

-7 5- 7658and for any additional pollution it generated after the purchase date which might migrate

offsite. Therefore we conclude as a matter of law that the Purchase Agreement language

reflects that intent.

4.	 The superior court did not err by concluding that Flint Hills

could pursue contribution.

The superior court concluded that contractual indemnification was not

available to Flint Hills because it had “caused or contributed” to the offsite sulfolane

contamination. And the court concluded that because indemnification was not available,

Section 10.4(b)’s Environmental Cap did not apply. 152 But the court determined that

Flint Hills could pursue contribution from Williams under AS 46.03.822(j). Exercising

its discretion to allocate equitable responsibility among the parties, 153 the court

determined that Williams was required to contribute $52.5 million to Flint Hills’s offsite

response costs, reflecting its equitable allocation of 75% of costs to Williams. The court

awarded $51.4 million for offsite sulfolane and $1.17 million for onsite PFAS

contamination, plus prejudgment interest on both.

No party disputes the court’s determination that Flint Hills was barred from

pursuing contractual indemnity. However, Williams contends that the superior court’s

assessment of damages for offsite sulfolane was erroneous because it exceeded the

Environmental Cap of $32 million. Williams claims that the Environmental Cap should

apply to all forms of damages, including statutory damages and contribution allocations,

152 In Flint Hills I

, we determined that indemnification claims for

environmental liabilities would be subject to the Cap. 377 P.3d at 976.

153 See AS 46.03.822(j) (“[T]he court may allocate damages and costs among

liable parties using equitable factors determined to be appropriate by the court.”); cf.

Lockheed Martin Corp. v. United States

, 35 F. Supp. 3d 92, 122 (D.D.C. 2014)

(discussing court’s discretion to allocate contribution in CERCLA context), aff’d , 833

F.3d 225 (D.C. Cir. 2016).

-7 6- 7658rather than only to contractual indemnification damages. 154 Williams further argues that

statutory contribution is not available to Flint Hills because the Purchase Agreement

made indemnification the exclusive remedy for environmental damages claims.

Williams argues that by failing to properly construe the exclusive remedies provision in

Section 10.5, the superior court “allowed Flint Hills to achieve an end-run around” the

indemnity bar. Williams asserts that, because money damages are not equitable relief

allowable under the Purchase Agreement and because we characterized contribution

damages under AS 46.03.822(j) as a legal claim in Flint Hills I

, contribution should be

barred by the Purchase Agreement. We disagree.

The Purchase Agreement at Section 10.2(a) provides that Williams would

indemnify Flint Hills “(iv) except to the extent that Damages are caused or contributed

to by [Flint Hills’s] operations, actions or omissions after the Effective Time.” The most

natural reading of this language and the reading best supported by trial testimony is what

the superior court first concluded: “reflecting the joint ‘my watch/your watch’ concept

for liabilities, the parties’ cross-indemnity provisions included language clarifying their

obligations to be limited to their own causes and contributions of Environmental

Conditions, excluding reimbursement and exempting each from holding the other

harmless for contributions or conditions caused by the other’s conduct.” However, the

superior court later determined that because Flint Hills contributed to some of the

sulfolane pollution during the period it operated the refinery, as a matter of law “[t]his

exception precludes contractual indemnity for sulfolane contamination.” Because neither

Williams nor Flint Hills challenges the superior court’s interpretation, we do not consider

154 Williams also argues that the superior court made two other errors when it

interpreted the Cap: the court determined that insurance proceeds paid to Flint Hills

were not relevant to the Cap, and it declined to enforce the Cap for public policy reasons.

Because we conclude that the Cap does not apply to the contribution claim, we do not

address these arguments.

-7 7- 7658it further.

We agree with the superior court that, because Flint Hills cannot pursue

indemnification under the Purchase Agreement, the Environmental Cap does not apply.

Section 10.4’s “Limitations on Indemnification” states in subsection (b) that “the

maximum amount of indemnifiable Damages” arising out of Sections 10.2(a) and (b) that

can be recovered by “ Indemnified Parties” is a Cap “with respect to any and all claims

for indemnity .” (Emphasis added.) This language makes clear that the Cap will apply

only to indemnification claims. Furthermore, Section 10.5 provides that “the

indemnification provisions of this Article X shall be the sole and exclusive remedy of

each Party,” “[ e ] xcept for

. . . equitable relief.” (Emphasis added.) The Agreement

makes clear that both parties understood equitable relief is not governed by the terms of

limitation in their private contract. 155 It was not error for the court, when making

contribution allocations, to take into account the parties’ intended contractual allocations

without being limited by their express terms

— in this case, the Environmental Cap. 156

155 Oakly Enters., LLC v. NPI, LLC

, 354 P.3d 1073, 1080 (Alaska 2015)

(discussing nature of statutory contribution remedy for recovering environmental

remediation costs and explaining “contribution claims essentially seek to allocate

damages equitably among those who share responsibility”).

156 See AS 46.03.822(j). CERCLA case law supports this approach and

because Alaska’s hazardous substance statute is informed by CERCLA, case law on that

federal statute is persuasive

— though not dispositive

— for resolving state law claims.

Berg v. Popham

, 113 P.3d 604, 606, 608 (Alaska 2005); see Lockheed Martin Corp.

, 35

F. Supp. 3d at 123, 143-44 (explaining court has “broad discretion” to make allocation

determinations in CERCLA context and “the predominant concern in equity is the intent

of the parties”); Halliburton Energy Servs., Inc. v. NL Indus.

, 648 F. Supp. 2d 840, 877,

880-81 (S.D. Tex. 2009) (explaining that even inapplicable indemnification provisions

can be considered to determine intent of parties to allocate contribution responsibility);

Kerr-McGee Chem. Corp. v. Lefton Iron & Metal Co.

, 14 F.3d 321, 326 (7th Cir. 1994)

(considering parties’ intent as expressed in their contractual arrangements to determine

(continued...)

-7 8- 7658Finally, the superior court did not err by concluding that Flint Hills could

pursue statutory contribution under AS 46.03.822(j). In Flint Hills I

, we referred to Flint

Hills’s indemnification claim and its statutory contribution claim under subsection

.822(j) as “legal claims,” in contrast with its “equitable claims” for declaratory judgment

and specific performance. 157 We did not, however, reach the question whether statutory

contribution constitutes a legal or equitable remedy

. Contribution is an equitable

remedy. 158 This is so regardless of whether it is provided for by statute. 159 Thus a claim

for statutory contribution is not barred by the Purchase Agreement’s exclusive remedies

provision.

Williams’s argument that contribution achieves an “end-run around” the

indemnity bar is unpersuasive. The parties agreed they would still be able to pursue

156 (...continued)

equitable contribution allocations); Beazer E., Inc. v. Mead Corp. ( Beazer II ), 412 F.3d

429, 447 n.20 (3d Cir. 2005) (explaining that indemnification provisions that do not

apply directly are still factor to consider in contribution claim).

157 377 P.3d 959, 973-74 (Alaska 2016).

158 See McLaughlin v. Lougee

, 137 P.3d 267, 275-79 (Alaska 2006)

(recognizing common law contribution need for fairness purposes); Oakly Enters., LLC

, 354 P.3d at 1080 (explaining contribution claims aim to equitably allocate damages

among responsible parties); Deal v. Kearney

, 851 P.2d 1353, 1355-56 (Alaska 1993)

(agreeing that “claims for contribution, indemnity, or subrogation are

. . . claims

grounded in equity”); Fellows v. Tlingit-Haida Reg’l Elec. Auth.

, 740 P.2d 428, 432

(Alaska 1987) (“Contribution is an equitable doctrine adopted to remedy the unfairness

of the common law rule allowing one of several tortfeasors to bear responsibility for the

entire loss.”).

159 See Benner v. Wichman

, 874 P.2d 949, 956 (Alaska 1994) (implying nowrepealed contribution statutes provided for “equitable contribution”); Arctic Structures,

Inc. v. Wedmore

, 605 P.2d 426, 430 (Alaska 1979) (discussing former contribution

statute AS 09.16.020(3) that expressly provided “principles of equity applicable to

contribution generally shall apply”).

-7 9- 7658equitable relief, “including injunctive relief or specific performance.” The word

“including” indicates these examples are illustrations rather than an exhaustive list of

allowable equitable relief. Contribution falls squarely into relief allowed even under the

parties’ own contractual arrangement. And Williams misconstrues our previous decision

when it argues that contribution provides a duplicative and thus ina ppropriate remedy

once indemnification is unavailable. 160 In Flint Hills I

, we denied Flint Hills declaratory

relief and specific performance because we determined that it still had an adequate legal

160 We do not decide whether contribution would have been available absent

the parties explicitly permitting the pursuit of equitable remedies. We have recognized

a common law contribution remedy, McLaughlin

, 137 P.3d at 275-79, and a statutory

contribution remedy in the hazardous substance context, AS 46.03.822(j). But Alaska

does not have a general contribution statute, such as the proposed Uniform Contribution

Among Tortfeasors Act of 1955, that discusses the relation between indemnification and

contribution. And even CERCLA case law, though generally indicating that an

indemnification agreement encompassing CERCLA liability between responsible parties

will control, is not always clear about whether such an agreement displaces contribution

altogether or controls equitable allocation in a contribution action. See, e.g.

, Fina, Inc.

v. ARCO

, 200 F.3d 266, 273-74 (5th Cir. 2000) (allowing claim for contribution only

after concluding that parties’ indemnification provision did not cover CERCLA claims);

Kerr-McGee Chem. Corp.

, 14 F.3d at 326 (finding indemnity agreement between parties

remained applicable in CERCLA action, but that result of indemnification and

contribution would have been identical and therefore declining to reverse contribution

award; also indicating that equitable allocation informed by indemnification agreement

could be modified depending on parties’ ability to pay to avoid shifting cleanup costs

onto public); Beazer E., Inc. v. Mead Corp. ( Beazer I ), 34 F.3d 206, 208-10, 218-19, 219

n.10 (3d Cir. 1994) (reversing dismissal of contribution claim because indemnification

claim did not cover CERCLA liability but implying that indemnification provisions,

rather than equitable apportionment, would control if applicable); Beazer II

, 412 F.3d at

447 n.20 (revisiting issues between parties and interpreting Kerr-McGee to mean that

when “indemnification provision did cover CERCLA liability,

. . . no equitable allocation

proceeding was required”); Olin Corp. v. Consol. Aluminum Corp.

, 5 F.3d 10, 16 (2d

Cir. 1993) (recognizing that applicable indemnification provisions should be followed

though they may incur “seemingly harsh result,” but failing to specify whether sole

remedy available was indemnification or if contribution could be pursued, though result

would be under parties’ indemnification provisions).

-8 0- 7658remedy through indemnification or contribution

— even if some of those legal remedies

might be time-barred by the statute of limitations. 161 We noted that Flint Hills’s equitable

claims sought identical relief to its legal claims, since its requests for declaratory

judgment and specific performance essentially asked the court to order Williams to pay

the same damages Flint Hills had requested in its indemnification and contribution

claims. 162 We did not conclude in Flint Hills I that indemnification and contribution

were duplicative remedies or constituted identical relief.

Unlike its claims for declaratory relief and specific performance vis-à-vis

its claims for indemnification and statutory contribution, Flint Hills’s contribution claims

are not duplicative of its legal indemnification claims. If available, indemnification

might have enabled Flint Hills to recover entirely for the offsite sulfolane pollution that

Williams caused or contributed to prior to the refinery purchase, without any equitable

modifications, but subject to the Environmental Cap. 163 By contrast, statutory

contribution requires the superior court to weigh equitable factors which, besides the

intent of the parties as evidenced by their contract, also includes the conduct of parties.

The parties’ indemnification agreement, although inapplicable, served to inform the court

about the parties’ intent, but it did not bind the court to the same result in its sta tutory

contribution determination as it would reach under its contractual indemnification

161 Flint Hills I

, 377 P.3d at 974 (dismissing claims for declaratory relief and

specific performance of contract that duplicated its financial contribution claims); see

also Knaebel v. Heiner

, 663 P.2d 551, 553 (Alaska 1983) (“One who seeks the

interposition of equity must generally show that he either has no remedy at law or that

no legal remedy is adequate.”).

162 Flint Hills I

, 377 P.3d at 974.

163 “An express indemnity generally is not subject to equitable considerations

or a joint legal obligation to the injured party; rather, it is enforced in accordance with

the terms of the contracting parties’ agreement.” 41 A M

. J UR

. Indemnity § 7 (2022).

-8 1- 7658determination.

For these reasons, the contract language expressly allows the statutory

contribution remedy and doing so does not inappropriately provide Flint Hills an “endrun around” its contractual arrangements or inappropriately award an equitable remedy

when a legal one was potentially available. The superior court did not err by granting

Flint Hills statutory contribution from Williams under AS 46.03.822(j).

5.	 The superior court’s contribution allocations were not

erroneous.

A party liable for the release of a hazardous substance under

AS 46.03.822(j) “may seek contribution from any other person who is liable.” 164 During

a statutory contribution proceeding, “the court may allocate damages and costs among

liable parties using equitable factors determined to be appropriate by the court.” 165

After Flint Hills sought contribution from Williams, the superior court

made a series of findings regarding Flint Hills’s contribution claims. In relevant part, the

court found: “Williams is strictly liable, jointly and severally, under AS 46.03.822 for

hazardous substance releases as an owner and operator of the [refinery]”; “the harm

caused by Williams[’s] sulfolane releases is not divisible or reasonably capable of

apportionment” and thus Williams “is jointly liable for the entire amount of response

costs.” Based on consideration of many equitable factors

— including contractual

indemnity clauses, proportions of sulfolane releases attributable to each party, the degree

of cooperation by each party, and promptness of reporting sulfolane in the groundwater

— the court found “Williams is responsible for 75% of the [offsite] sulfolane response

costs, while Flint Hills is responsible for 25% of the costs, and the State is not

164 AS 46.03.822(j).

165 Id.

- 82- 7658responsible for any of the costs.” 166

Williams appeals the superior court’s statutory contribution allocation

under AS 46.03.822(j), arguing the court erred by (1) allocating anything for offsite

sulfolane to Williams because the parties “had allocated full responsibility for sulfolane

to Flint Hills under the Agreement”; (2) failing to properly consider DEC’s nonregulation of sulfolane prior to 2004; (3) penalizing Williams for defending itself;

(4) “failing to allocate responsibility to the State and ignoring Williams[’s] equitable

estoppel and laches defenses”; and (5) “failing to allocate responsibility to the City.”

a.	 The court did not err by allocating statutory contribution

for offsite sulfolane to Williams.

We have affirmed the superior court’s conclusion that Williams retained

responsibility for sulfolane that was offsite at the time of the Purchase Agreement and

that Flint Hills could recover through statutory contribution in the absence of contractual

indemnification. The court therefore did not err by allocating responsibility to Williams

under the contribution provisions of AS 46.03.822(j). 167

b.	 The superior court adequately considered DEC’s earlier

non-regulation of sulfolane when it allocated damages.

Williams argues that the superior court erred when it “failed to compare the

relative ‘culpability’ of Williams and Flint Hills given the very different regulatory

environments in which each operated the refinery.” Namely, because sulfolane was not

regulated as a hazardous substance when Williams released it, Williams argues the court

erred by not reducing Williams’s culpability. Williams relies primarily on two cases for

166 The court did not allocate any costs to the City of North Pole, which was

not a party at the trial.

167 See Oakly Enters., LLC v. NPI, LLC

, 354 P.3d 1073, 1077, 1082-83 (Alaska

2015) (discussing and affirming broad, non-inclusive list of factors superior court

considered in allocating responsibility for damages under subsection .822(j)).

-8 3- 7658support: Boeing Co. v. Cascade Corp. for the assertion that “[a] court should consider

the care a party exercised ‘in light of the practices characteristic of the time’ and may

reduce a party’s share if no rules or laws prohibited the practices at the time”; 168 and

Oakly Enterprises, LLC v. NPI, LLC for the assertion that “[a] court should also consider

which party ‘knew or should have known’ of the contamination and which party ‘had the

ability to control the [cause]’ at the time.” 169 Williams argues that, had sulfolane been

regulated before the Purchase Agreement, it would have been able to keep it onsite

because it “kept all regulated contaminants onsite during its tenure.”

Superior courts have broad discretion over which equitable factors to

consider when allocating costs under both CERCLA and AS 46.03.822. 170 A court may

choose to reduce a party’s damages according to the party’s practices and prevailing

circumstances at the time, but it is not required to. And as the State points out, neither

Boeing Company nor Oakly Enterprises supports Williams’s position in this case. Even

though sulfolane was not yet regulated as a hazardous substance, it would have been a

pollutant under AS 46.03.900(20) and thus its unpermitted releases were prohibited

under AS 46.03.710. As Williams conceded at trial, releasing sulfolane regardless of its

official status as a hazardous substance was prohibited by law

— a fact that counts

against Williams rather than in its favor. The record demonstrates that Williams knew

about the sulfolane releases during its tenure at the refinery due to its own negligence,

but failed to address the ongoing releases. Williams k new sulfolane was at least toxic

if not “hazardous.” Yet the “care” that Williams exercised included storing sulfolane168 207 F.3d 1177, 1187 (9th Cir. 2000).

169 354 P.3d at 1077.

170 E.g.

, id. at 1078, 1080-83 (applying clear error standard of review to factual

findings and abuse of discretion standard to decisions whether to admit or exclude

evidence); Boeing Co.

, 207 F.3d at 1187.

-8 4- 7658containing waste in a leaky, decommissioned lagoon, some of whose many holes were

crudely “patched” by nailing two-by-fours to the liner. Williams also unilaterally

stopped the monitoring that DEC requested to help identify and address the source of the

sulfolane leaks. That behavior was neither typical nor allowed at the time, and Williams

knew of and was in control of the cause of the contamination, supporting the court’s

decision to impose statutory contribution against Williams.

c.	 The superior court did not penalize Williams for

“defending itself.”

Williams argues that the court erred because its “allocation expressly took

into account Williams’[s] alleged ‘recalcitrance’ and ‘refusal to assist’ DEC.” Williams

argues it was penalized for defending itself. Williams contends it was within its rights

to refuse to provide alternative water and to indemnify Flint Hills, and claims it would

be unconstitutional to penalize it for doing what the law plainly allows it to do. 171

The State quickly and correctly dismisses this argument by pointing out that

“[a] party may be ‘within its rights’ to refuse to act until ordered by a court, but its

choices can still weigh against it in equity.” Courts often consider the extent to which

parties cooperate with regulators in this context. 172

171 We agree with the State that none of the cases Williams cites for support

contradict the assertion that a party’s refusal to act can “weigh against it in equity.”

Williams relies for support on an incomplete quote from a dissent, without identifying

it as such, but omits the following paragraph of that dissent, which acknowledges

“CERCLA strongly incentivizes voluntary compliance” and refers to a case that

recognizes the court’s ability to impose fines when a responsible party willfully fails to

comply with an EPA order without sufficient cause. McGinnes Indus. Maint. Corp. v.

Phoenix Ins. Co.

, 477 S.W.3d 786, 801 (Tex. 2015) (Boyd, J., dissenting) (citing Gen.

Elec. Co. v. Jackson

, 610 F.3d 110, 114 (D.C. Cir. 2010)).

172 See, e.g.

, Oakly Enters. , 354 P.3d at 1077 & n.6 (allowing superior court

to consider “the degree of cooperation by the parties with Federal, State or local officials

(continued...)

-8 5- 7658Williams asserts in reply, without support, “that Williams cooperated in the

initial investigation” and that “six years after the refinery’s sale, Williams was

participating and willing to continue doing so, until the State abruptly stopped

investigating and sued.” Our review of the record confirms that Williams conducted

groundwater sampling for sulfolane for about a year before stopping the sampling

without having identified the source of the sulfolane leak, contrary to DEC’s

instructions. 173 And Williams attended meetings with DEC and offered to pay for and

conduct certain modeling, though it did not give the models to DEC. But Williams does

not point to anything in the record indicating that it cooperated with DEC. Williams has

not challenged the superior court’s findings of fact on this issue, including its extensive

findings showing an overwhelming level of inaction by Williams even after it had

received notice in 2010 that DEC would be treating sulfolane as hazardous. The court

did not abuse its discretion by allocating costs against Williams in part for its lack of

cooperation.

d.	 The superior court did not err by not allocating

responsibility to the State or by ignoring Williams’s

equitable defenses.

Williams argues that because the State admitted to being a “liable

landowner under AS 46.03.822(a)” as an owner of the refinery lands, the court erred by

not allocating some responsibility to the State under AS 46.03.822(j). Williams also

argues that “the court should have allocated some .822(j) responsibility to the State”

based on laches and equitable estoppel.

172 (...continued)

to prevent any harm to the public health or the environment,” among other equitable

factors, when allocating responsibility for releases under AS 46.03.822(j) (quoting

Lockheed Martin Corp. v. United States

, 35 F. Supp. 3d 92, 123 (D.C. Cir. 2014))).

173 Flint Hills I

, 377 P.3d 959, 963 (Alaska 2016).

-8 6- 7658Williams cites FDIC v. Laidlaw Transit, Inc. 174 for support that the State

should be allocated costs for sulfolane contamination, but that case does not support its

argument. In Laidlaw we recognized that cleanup costs need not “be borne by all

potentially responsible parties equally” and that courts can “distinguish among

potentially responsible parties to avoid inequitable results.” 175 And AS 46.03.822(j)

expressly grants discretion to “allocate damages and costs among liable parties using

equitable factors determined to be appropriate by the court.” Williams’s argument

amounts to mere disagreement with how the court weighed these equitable factors.

When it found that the State was without fault as a landowner, the superior

court reasoned that “[n]o persuasive evidence was presented at trial to support an

equitable allocation” to the State. Williams points to several factors it suggests indicate

the State’s culpability. For instance, it asserts that the State had a “but-for causal role in

allowing the sulfolane to remain in the ground throughout Williams’[s] tenure.”

Williams seems to argue that, because it notified DEC of the sulfolane release in 2001

and DEC told Williams only to keep tracking sulfolane through sampling because it was

not then a regulated contaminant, Williams had no obligation to clean it up. But as early

as November 2000 a representative from the Department of Natural Resources 176 met

with Williams and DEC to discuss the adequacy of Williams’s spill prevention efforts

and the preparation of a characterization and corrective action plan. In that meeting,

DNR told Williams that it might be in default on its lease because of the spills.

Williams also alleges the State was indirectly responsible for sulfolane

174 21 P.3d 344 (Alaska 2001), abrogated on other grounds by Buntin v. Schlumberger Tech. Corp.

, 487 P.3d 595 (Alaska 2021).

175 Id. at 349-50.

176 DNR was the State agency that managed the lease of the land underlying

the refinery.

-8 7- 7658releases by allowing Flint Hills to turn off its pumping system in July 2017, which

Williams claims “caus[ed] the sulfolane to migrate offsite.” Although the State did allow

Flint Hills to turn off the pumping system, sulfolane had already been detected offsite in

October 2009. Furthermore, the court expressly considered this factor and found it to

be outweighed by Williams’s “other negative conduct,” such as “mismanagement

. . . of

its waste fluid treatment and disposal systems” and “cessation of testing for sulfolane

sources on the [R]efinery property.” Williams does not argue that the court erred when

it weighed this fact about Flint Hills turning off the pumps in its equitable allocation

decision. We are not persuaded the court erred by not allocating financial responsibility

to the State as a landowner under these circumstances.

Williams also argues that the superior court “inexplicably ignored

Williams’[s] equitable estoppel defense and reasonable reliance on the State’s repeated

written affirmations that sulfolane was not regulated and could be left in the ground.” 177

Williams alleges that the court “previously found this defense to be relevant to allocating

damages under .822(j).” But the court previously explained that equitable defenses

would be relevant, if at all, for allocation under subsection .822(j) rather than for

establishing liability under subsection .822(a) because that would undermine the strict

liability framework of the hazardous substance statute. And in any case the court did not

explicitly find that Williams’s equitable estoppel defense was relevant for subsection

.822(j) allocation. As the State points out, Williams does not provide any arguments

undermining the court’s discretionary decision not to consider Williams’s defense of

177 “Equitable estoppel requires proof of three basic elements: (1) ‘assertion

of a position by conduct or word,’ (2) ‘reasonable reliance thereon,’ and (3) ‘resulting

prejudice.’ In addition, equitable estoppel ‘will be enforced only to the extent that justice

so requires.’ ” Beecher v

. City of Cordova

, 408 P.3d 1208, 1214 (Alaska 2018) (first

quoting Jamison v. Consol. Utils., Inc.

, 576 P.2d 97, 102 (Alaska 1978); and then

quoting Mun. of Anchorage v. Schneider

, 685 P.2d 94, 97 (Alaska 1984)).

-8 8- 7658equitable estoppel.

Williams also argues that laches “should have comparatively reduced

Williams’[s] responsibility because” in earlier proceedings “the superior court found

laches barred Flint Hills’[s] claims for equitable remedies against Williams due to its

‘unconscionable delay’ in addressing sulfolane.” Williams then states, somewhat

misleadingly, that the “factual findings upon which the court’s laches decision was made

were affirmed on appeal” and should have preclusive effect. We earlier agreed that Flint

Hills “reasonably should have concluded ‘long before May 10, 200[8]’ that sulfolane had

migrated beyond the sampling disclosed in the Agreement.” 178 But we explicitly did not

reach the issue of Williams’s l aches defense on Flint Hills’s equitable claims because

these were not available in light of the legal remedies available by contract and statute. 179

Williams also challenges the court’s conclusion that Williams’s delayed reporting of

discovering sulfolane in the groundwater was more problematic than Flint Hills’s nearly

two-year delay in drilling monitoring wells. We see no abuse of discretion in allocating

more responsibility to the party that waited five years to report its discovery that a

relatively novel solvent had leached into the groundwater than to the party that delayed

drilling “recommended monitoring wells” for about two years.

e.	 The superior court did not err by failing to allocate

responsibility to the City of North Pole.

Williams next argues that “[t]he City was a significant source of sulfolane”

and the court should have allocated responsibility to the City. The court did not rule on

the City’s liability and prevented Williams from presenting evidence implicating the

City’s contribution to the sulfolane plume.

As both Flint Hills and the State point out, once the court deconsolidated

178 Flint Hills I

, 377 P.3d at 973 (alteration in original).

179 Id. at 974.

- 89- 7658the cases in June 2019 the City was no longer a party to these proceedings. While the

cases were consolidated, Williams raised a contribution claim against the City, but the

court dismissed it as untimely. Though in the State’s suit the court could have

considered the City’s culpability as an equitable factor under AS 46.03.822(j), because

Williams is “strictly liable, jointly and severally” under AS 46.03.822(a), the superior

court did not abuse its discretion by failing to allocate costs to an absent party. 180

Williams also attempts to appeal the deconsolidation order. The Rules of

Appellate Procedure require that an appeal brief contain a “short conclusion stating the

precise relief sought” 181 and that the argument section contain “the contentions of the

appellant with respect to the issues presented” as well as a “heading indicating the

subject matter” for “[e]ach major contention.” 182 Williams asks in its statement of issues

on appeal whether the superior court erred in deconsolidating the cases but does not

request that the deconsolidation be reversed on appeal, and omits any mention of the

order from its discussion heading. Williams claims it was prejudiced by deconsolidation,

but fails to challenge the court’s detailed justifications for deconsolidating the cases.

Williams adds in a heading in its reply brief that the superior court “erred by sua sponte

deconsolidating the cases,” but again fails to cite to a rule or case indicating how the

court erred. Williams waived its deconsolidation argument: we “consider as abandoned

questions set forth in the Points but not argued in

. . . [the] brief,” 183 and an appellant’s

180 See Laidlaw Transit, Inc.

, 21 P.3d at 349-50 (contemplating absentee

responsible parties in AS 46.03.822(j) contribution claim and explaining how courts can “distinguish among potentially responsible parties to avoid inequitable results”).

181 Alaska R. App. P. 212(c)(1)(I).

182 Alaska R. App. P. 212(c)(1)(H).

183 Reilly v. Northrop

, 314 P.3d 1206, 1212 n.4 (Alaska 2013) (alteration in

(continued...)

-9 0- 7658reply “brief may raise no contentions not previously raised in either the appellant’s or

appellee’s briefs.” 184

VI. CONCLUSION

For the reasons stated above, we

AFFIRM the superior court’s conclusion that sulfolane is a hazardous

substance under AS 46.03.822(a);

AFFIRM the superior court’s award of response costs under AS 46.03.822

to the State and Flint Hills for Williams’s offsite sulfolane releases;

AFFIRM the superior court’s award of natural resource damages to the

State for the loss of access to groundwater;

AFFIRM the superior court’s interpretation of the Purchase Agreement’s

indemnification provisions;

AFFIRM the superior court’s contribution awards under AS 46.03.822(j);

AFFIRM the superior court’s decision not to refer onsite PFAS

contamination issues to DEC; and

AFFIRM the superior court’s declaratory relief; but

REMAND the superior court’s injunctive relief for further proceedings in

light of this opinion.

183 (...continued)

original) (quoting Wetzler v. Wetzler

, 570 P.2d 741, 742 n.2 (Alaska 1977)).

184 Alaska R. App. P. 212(c)(3).

-9 1- 7658